Glenn C. Smith, Professor, California Western School of Law
Related Story: U.S. Supreme Court Justices Head Back To Court
MAUREEN CAVANAUGH: Many federal government workers are furloughed because of the government shutdown but not the nine lifetime appointees to the US Supreme Court. The justices begin a new term today as usual on the first Monday in October and some of the most watched cases this year will be issues involving campaign finance and copyright law and also about prayer in public places. I'd like to welcome my guest, law professor Glenn Smith of the California Western school of Law. Glenn, welcome back to the show.
GLENN SMITH: Thank you it's good to be here especially on first Monday.
MAUREEN CAVANAUGH: First Monday, a very exciting time for you, I know. First of all is the Supreme Court are they completely unaffected by the government shutdown?
GLENN SMITH: The justices under the Constitution have to keep being paid their salary. So they are one of the few federal officials with salary protection. The federal courts in general have funding for the next couple of weeks. And so therefore the oral arguments in October and all of that in most of the work of the federal courts are not in question but if this goes on much longer past the middle of this month they will raise very serious questions about the ability of lower federal courts to hear cases that are important and it may have something to do about the Supreme Court. I hope we are not talking about mid-November and will the court still be able to have its oral argument.
MAUREEN CAVANAUGH: I agree with you on that. Now, what is the, this is the week that the term begins.
GLENN SMITH: That is correct.
MAUREEN CAVANAUGH: But not necessarily the first week that the justices have been working. For instance when does the court decide on the cases that it will review during this term?
GLENN SMITH: It decides ongoing. Usually there's a hiatus between the end of June when they grant most of the cases happened last week, last Tuesday granted review in another eight cases. So there's kind of a summer vacation the court goes on summer recess. But you are right that they've been working on which cases to grant, they've been getting ready for oral argument that started today and there's ongoing business you know, death penalty stays of execution and various extraordinary writs. So they have to be in communication but in the summer they are able to go overseas and teachers institutes and meet their colleagues in Europe and those kinds of things.
MAUREEN CAVANAUGH: You make a good point about arguments oral arguments beginning today because all the cases that the court grants review to, not all of them are actually argued before the Supreme Court. Some of them are basically, the court reviews papers, right?
GLENN SMITH: A few of them. Mostly though the court has cut down on the number of cases they review, so therefore most of the cases that it reviews are cases where they will have an hour of oral argument and of course lawyers on both sides and maybe 25 or 30 amicus institutions will be filing briefs and very actively participating.
MAUREEN CAVANAUGH: Now let's look at some of the cases before the High Court this time around. A lot of the coverage of the court this term says oh, there is nothing really huge, there is nothing really huge like same-sex marriage or---
GLENN SMITH: Obama Care.
MAUREEN CAVANAUGH: Exactly, but there are cases that are, really do have an impact. For instance there is a case the justices will be looking at that involves limits set on individual contributions to federal candidates. How did this one come about?
GLENN SMITH: This is one actually they are going to argue this tomorrow morning and basically back when we had all these attempts to regulate election campaign contributions there's a provision in federal law that says not only is there a limit on how much you can contribute each candidate but there is a so-called aggregate limit which limits how much money you can give to noncandidate committees including state party committees and that. The idea is if you strictly limited direct contributions to individual committees but people could rack up hundreds of thousands of dollars were millions of dollars of contributions that overall help the community that would be a way to buy axes, pike a way to get a quid pro quo. The trick is though that since 1976 federal campaign-finance law has distinguished between limiting contributions, which is more loud for the government to do that, and limiting the overall amount of money that people can spend which the court has seen for 30+ years as more of a direct right of an individual. After all, how much I spend me determine how much my point of view gets across. And so, this case, this aggregate limit, it's gets really complicated there's all these limits but the bottom line is aggregate limits are in between direct contributions to candidates and the overall amount you can spend as a private individual and which box the court proceeding is going to be important and the course is actually being invited at this case to revisit the lines and bring even more protection to campaign spending from a constitutional standpoint and therefore even lesson further the ability of government to regulate so it could be a very big case for the political system.
MAUREEN CAVANAUGH: Right, is there any chance that this case as you say is going to be resolved as a free speech issue like citizens United?
GLENN SMITH: Absolutely it will be a free speech issue. The question is will it be a relatively narrow free-speech issue or open season on not only citizens United but the granddaddy case, Buckley versus (inaudible) which gave birth ultimately to citizens United. So the court I mean this is one of several cases on the court docket where the court could narrowly apply current principles, but it's also been invited to read look at and perhaps overrule those principles and make more major changes. So it kind of fits into that category. The court will have a range of options as to how a response and how much mischief it creates of the current law.
MAUREEN CAVANAUGH: And isn't this something that Supreme Court nominees are routinely asked about their feelings on whether or not they should upturn settled law?
GLENN SMITH: Exactly.
MAUREEN CAVANAUGH: But most of them say they are not going to, right?
GLENN SMITH: Well of course there is a big disconnect between the realities of judging and the bromides that get said at confirmation hearings. But all justices except arguably justice Thomas respect the idea that you should follow a precedent but it is never an ironclad under precedent following and plus the question is if the Supreme Court created a precedent in the first place and is really practically the only body that can correct a past mistake, where should you correct a mistake and overturn precedent and when should you follow precedent even if you don't agree with it because that promotes reliance in the law and if the law, if there were no precedent, if you woke up on a Monday morning and said I wonder what the law is today, that would be unacceptable. But if the Supreme Court couldn't occasionally overturn mistakes like before Brown versus Board of Education that old opinion that said separate but equal is okay, it would be intolerable to be able to overturn that. So that is the kind of tension that the court lives, within the country lives with is how much precedent should be followed, how much overturning is allowed and that is very important to judging that rarely gets discussed well in the confirmation hearings.
MAUREEN CAVANAUGH: Let's talk about another case another hot issue with the practice of opening a legislative session with prayer is constitutional. The town of (Reece) New York opens its town board meetings with a prayer given by a citizen. Anyone of any faith can volunteer and the town has never rejected a request to give an invocation by anybody of any faith who wanted to. Why is this practice being challenged?
GLENN SMITH: Two citizens of the town are claiming that given the fact that the vast majority, 117 of 121 prayers are Christian and said by, and include a lot of very strong Christian content, that the town has violated the requirement that it not be seen as endorsing the Christian religion. So it is a violation of the establishment clause which says government has to have a certain amount of separation between church and state. It's not I class, but that is how the lower court by some respected judges saw this. They saw this as the town did not do enough to try to diversify and associate itself with the Christian messages of these predominantly Christian ministers and leaders who gave the prayer. So this is a net, one of the cases where the course could apply the so-called endorsement test the facts and come out the same or differently than the lower court but it is being invited again to rethink the endorsement test at least involving legislative prayers. And perhaps completely. If I could say one more thing about this what is especially interesting is Justice O'Connor has traditionally been, was a traditional swing voter in this case that, she came up with the endorsement test. She's not on the court now and who took her place is Justice Alito who has not yet had to show his cards in this area, so this could be, may not be, but it could be a case where we get a major sense of where Justice Alito is and therefore where the working majority on church state cases is on this court so it could have big implications even for the Mt. Soledad Cross and various other cases.
MAUREEN CAVANAUGH: Another ironic aspect of this is that the chaplain of the Congress is making headlines recently because of things he's been saying to people during the government shutdown you know basically saying, talking about cowardice and basically giving them a hard time about that shutdown. Why is the Congress allowed to open their sessions with a prayer like that?
GLENN SMITH: The Congress and state legislatures have generally been thought to be covered by a case that upheld state legislative prayers. That case is many decades old, but it fits into the category, I mean, your listeners are familiar with in God we trust in their money and various, the idea is that we don't, that the establishment clause even under people that believe strongly in separation of church and state doesn't require writing out all religious messages and all religious traditions. There is a certain tolerance for religious tradition. So, chaplains are okay. Certainly if this town opened with a prayer this month was Christian and next month was Jewish and next month was humanist there wouldn't be this problem, but given the facts and arguably the town's failure to make sure that it protect itself against that feeling that it was endorsing Christianity or endorsing religion, it's gotten into trouble.
MAUREEN CAVANAUGH: Now affirmative action cases are still being determined by the High Court. Tell us about this latest one.
GLENN SMITH: This is really interesting and it's next week on the agenda on the 15th. Seems like it's an affirmative action case and it is certainly affirmative-action and all the controversy about a bruise over this case but technically it is a put up our case. It is about the challenges proposal to which is an amendment put into the Michigan Constitution much like prop 209 which basically said the state cannot use affirmative-action in education beyond what it is constitutionally required to do. And a very divided 15 Member Court in the sixth circuit, 8 to 7 split and decided that it violated equal protection. And the theory was that because affirmative-action is about race and benefits racial minorities, that to make this policy educational issue the only issue that has to be, it's in the state constitution and can only be changed by a state constitutional amendment to reveal it is discriminatory because every other educational policy decision can be dealt with at the lower level or some less dramatic level. So that is the issue, so it is really about when can you repeal a race beneficial or race-based law and when can't you and where are the lines.
MAUREEN CAVANAUGH: Wow, and now from my understanding is the court has accepted about 47 cases, 47, 50 cases. And that the court usually accepts about 70 cases to review each term. So, what are they still trying to figure out whether they're going to be hearing?
GLENN SMITH: By the way if you think about it, I was thinking about this today. I think that the Obama Care decision the big one remember from two years ago and the same-sex marriage equality cases were not on the docket when the court started in October. So if recent history is an example we might find a true blockbuster case being added has the term goes on. Already under review several courts have had trouble with the requirement can Obama Care that requires that employers, even if they disagree with birth control to provide birth control coverage. That various courts have had problem with that. Both on the free exercise of religion and the idea that it interferes with the religious rights of the employers, but also a federal law which requires the federal government not to discriminate on religious grounds. So, most predictors think that the court will take one of those cases very soon. There is an abortion regulation case from Oklahoma that is not on the docket but the court took the unusual move of asking the Oklahoma Supreme Court to clarify the ruling which most observers think is a subtle signal that Oklahoma better change its law or it's creating a real controversy. That could come back to the court. In June they took an abortion protest, abortion clinic protest case up, so there's a lot of potential floating around.
MAUREEN CAVANAUGH: For even bigger cases than are already there.
GLENN SMITH: Bigger cases, exactly.
MAUREEN CAVANAUGH: I've been speaking with Glenn Smith, professor at California Western school of Law. Thank you so much for speaking with us.
GLENN SMITH: My pleasure.