tv Inside Story Al Jazeera October 13, 2014 11:30am-12:01pm EDT
jerusalem. it doesn't deal with the problems. it embraces the romanticism. it's like perfume. it's nice to smell but it's not real. it needs to be real. we have to deal with the hard facts on the ground with both states living side by side in a flourishing future. >> can an employer make a worker do something and not pay for the time? can an muslim inmates demand the right to wear a beard in prison? time for the supreme court to get to work. it's inside story. >> hello, i'm ray suarez. autumn brings cooler nights, falling leaves.
baseball playoffs, and nine powerful men and women back to the supreme court of the united states to begin another term. after sessions packed with bloc buster cases, hobby lobby strike down closed union shops, requiring warrants for police searching the contents of a cell phone, what deliberations and decisions will make news in the coming terms. again and again we turn to the nation's highest court to rule on statement limits, the state powers over individuals, and relationships in business. and by declining gay marriage cases, wins for the gay rights cause. >> reporter: the justices turning down petition dealing with same-sex marriage law. it doesn't mean that a marriage case won't appear before the court this year. gay marriage advocates hope that they'll rule
di finishtively in their favor. since the court ruled against the defense of marriage act and california's prop 8 in 2013, marriage bans have foul no one a dozen states. cases in front of the court include police see sure, the other centers on the use of drug-sniffing dogs in similar situation. there is focus on the petitioners religious practice. one is a convicted felon, he said his religion rights are infringed on prison requirements that he cut his beard. and a woman was discriminated against wearing a head scarf in a job interview at a major
retailer. elections, fair housing and illegal fishing. one case comes from an amazon warehouse worker who said he should be paid for the time it takes him to clear security screening the company requires after he finishes his 12-hour shift filling orders. and there is an interesting free speech case. the court has been asked to determine if the threatening language a man aimed at his wife and posted on facebook constitutes a true threat. the woman felt her life was, indeed, at risk. >> the new supreme court term this time on the program, how will thee new cases fill in the over all picture in this new court. it's philosophies of nine members and leadership of the chief justices thomas roberts, and how could the decisions change the rules of the game in american daily life. joining us for that conversation
to ginger singh, of the law firm goldstein and russell, and jeffrey rosen, president of the national constitution center, and bruce fein, attorney general in the u.s. department of justice. jeffrey rosen, let me start with you. what cases caught your eye? what are you looking out for this term? >> the big question is which roberts court are we going to look at this year. is it the unanimous roberts court which we saw last year which saw the highest rate of anonymity ,e anonymity and of course it's too soon to tell but there are a bunch of cases that
might cause the justices to divide sharply. we'll see for the first time since the 2010 census and redistricting that followed whether or not districts created for the benefits of minorities violate the constitution or the voting rights act. there are very sharp disagreements among the justices on that question. you did mention fascinating free speech and religious freedom cases those are case where is the justices tend to be aligned in terms of creating religious exceptions including the sikh prisoner who wanted to wear a beard. that facebook privacy case, whether the guy who wrote the very threatening and frightening things on his facebook he had to have sub just to harm her or as he said, he was merely fantasizing.
>> can we tell something about the court and it's make up by the cases they haven't cert? >> their decision to decline review of seven petitions which raise the issue of same-sex marriage was an indication that they didn't want to repeat roe versus wade on abortion and get ahead of the country. they may let it percolate and not make a decision at all if lower courts hold that there is a right to same-sex marriage. and i think they're caution in narrowly writing opinions that don't create landmark earthquakes like the warren court. a couple of cases that jeffrey didn't mention, one that i think the court is likely to cake concerns obamacare and whether you're operating a federal exchange. you're eligible for success sidney
subsidy . another case is one concerning separation of powers that would have enormous implications, i believe, with regard to the president's authority to go to war and what did he in libya. it looks obscure but it relates the authority of congress to direct the secretary of state to identify israel as the place of birth for an american citizen who was born in jerusalem, and the president for political reasons, foreign policies reasons objects to that because they feel it will fail to negotiate between israel and palestinian authority. and if it comes down in favor of congress it will rebuff the president's swishes to done whatever he wishes in foreign affairs, which is very prominent today. >> you have the anchor leg, which is tough after these two jents have spoken.
you get to finish us ultimate. what has caught your eye in the cases that you would like them to hear. >> about this question of which roberts court will appear, i think it's an interesting question. i don't think it's a real choice because both courts tend to appear during the same it term. you have a high degree of unanimity and then hobby lobby. you have a court with a decision that probably saved it in the obamacare act and upheld it. and i think this term will be more of the same in a lot of these cases that my colleagues have been talking about. >> because there is no finally hard and set concrete on some of these social issues, for instance, the role of social media in our lives, it seems like we keep going back to the justices to define the parameters, to figure out where the boundaries are for free expression.
what it means to say something on facebook as opposed to saying it directly to somebody's face. >> i think that's correct, and it's a task for which the justices are in some sense not terribly well equipped, especially when you deal with cases with rapidly evolving technologies and modes of communication that justices may not be personally familiar with. justices loom large in misinterpreting what the technology is. facebook post more like the town crier? really, who cares is what i come back to when i think about these cases. it's really odd how we're constantly looking backward for analogies that not work especially in modes of communication. >> i think, ray, the large reason is that congress has abdicated its responsibility to keep the law up-to-date we reeling the electronic communications act that is 20 years old, and it brings stress on the president.
and the post 9/11 issues in foreign affairs. no one has had presidents go to war against a tactic rather than a country, a war that is perpetual. congress is silent on the matter, and court is clueless as to decrease these. >> professor rosen, is it because of badly written or inexactly written legislation or silent legislation that we ask the court to weigh in on these topics? >> well, i do think bruce fein is right, for questions that are hotly contest ed chronicles wants to pas --,i think congress wants to pass the buck. take the remarkable cell phone case last year. who would have thought that all nine justices would agree that searching one's cell phone on
arrest requires a warrant, and unanimously rejected the claim that it's not like a cigarette packet which police are allowed to inspect. chief roberts compared the serve of a cell phone to the warrants of the revolution. quoting john adams not regulating rummaging through our effects. justice kagan has said she's the youngest justice, and she prongs playing pong, that's the game of her youth. but when defining the moments the courts often get it and in a world where all of our private hopes and fears are stored on electronic devices you do need a warrant before they can search. >> they've been called upon to look into the work of a rapper and his lyrics, and justice soto meyer has
how does a kid end up at the center of a separation of powers case. bruce was mentioning this earlier but we didn't get into the nitty-gritty. he was born in jerusalem. not recognized as the capitol of israel by the united states. is this a tug-of-war by the state department and the legislative branch? >> the case concerns the scope of the executive's foreign affair powers. the court has upheld the executive's power to conduct foreign affairs. does the labeling of jerusalem as part of on this child 's passport reckon foreign affairs. congress ought to take a step back and look at how the case--
>> jeff rosen? >> i'm reading on the issue of the case whether a federal statute requires to record the birthplace of a person born in jerusalem born in israel and reposing exclusively. i tend to agree this is a court fight favorable to executive power that is suspicious of the attempts by congress to impose. certainly the conservative justice who is were formed in the bush and reaganen justice departments are especially sensitive to presidential prerogatives here. so there does seem to be a good chance that there will be concern that congress is overstepping it's bounds. and a ruling here might have broader implications of all the questions we're talking about now, whether president obama is overstepping his grounds in
attempting to declare war on isil. the case will be watched closely as suggested. >> the brief filed by the united states really claims virtually limitless authority for the president in foreign affairs, and there was a previous case that concerned the president then bush's ability to create military unilaterality, and it was held unconstitutional, and now congress will try those for detainees at guantanamo bay. historically congress has played a far greater role than commonly understand. the sanctions against iran, the sanctions against libya. they're instrumental, the amendment with regard to try to force the soviet unity to force jews to immigrate to israel. congress is simply saying that for purposes that if someone is born in jerusalem, he is blighted to having his place of
birth being israel. how does that preliminary kate things for the president? congress does things all the time that the president doesn't like. and he can either veto it, but otherwise he's got to live with it. the president doesn't have always the final say. >> ginger, to the case of amazon. we have workers who work 12-hour shifts, basically boxing up the stuff that you order online. when their shift ends they have to spend time off the clock being frisked to make sure they're not stealing anything. workers say well, we should be paid for that time because we're still at work, and we're required to be at work. they can't just walk out as if it's their free time. the interesting wrinkle here is that these women and men don't work for amazon. they work for a job supplier, an employment
agency, and so it's unclear who it is who is making the rules, who they work for, and who has got to pay the over time. >> that's an accurate summary of the case. this statute has made it's way to the court many times. it comes up with poultry workers who have to put on protective gear before they go to work. it comes up with a variety of employee who is often have to engage in preliminary and postlininary of their work. and it's the devil of the work to come up. >> why is it that no decision makes law once and for all in an area in cases like this. if you work over your clock time it's over your period time, period. >> it's amendment to the fair labor standards, the portal to portal act. there are activities that you have to do fork work. for example, we get dressed all
pretty to go to work, but we don't get payed for the time whereas someone who puts on protective gear, they may. there are analogies of work where certain types of workers are compensated, and we're all arguing by analogy. this is how this case functions as well. >> i don't want to miss the beard in prison. there are two bearded men on this panel and two clean shaven ones. because of his faith as a muslim even though he's in confinement he should be able to wear a beard in accordance to his religious beliefs. the state of arkansas says no, we don't want you to have a beard because you could hide things in it, and it could become a security problem. i thought that there was standing law in the form of the religious land use and constitutionalized persons act which spoke in this matter and said there really went a fight any more.
>> you there is, indeed, that act. with the acronym of relupa, which sounds exciting. and it does seems to suggest there should be religious exemptions when there are less restricted means of enforcing security such as checking the beard, but the act does not speak with perfect clarity. that's why there is disagreement with the lower courts on this matter. i think there is a sense that this court, which has strong sympathies for religious exemptions ever since congress overturned a something writtenbly justice is scalia. i think there may be sympathy for this inmate and his beard and he may get support. >> the difference is that he's in con fivement. there have been accommodation rules all along in the middle
with yarmulkes and turbines and other displays of non-uniform dress, the use of peyote, and other types of law. but it's his standar status as a prison. >> in cases like peyo it te, the supreme court ruled there was not an exemption. and it was created, and initially the supreme court said you don't have a constitutional right. congress came back and amended the statute. what you have in this statut statutory situation, they created the free exercise of religious in prison institutions. what i find intriguing about it is that the court in the hobby lobby case last term indicated that they would interpret the statute to create a high hurdle on any government from imposing any kind of restriction on someone's ability to practice their religion, and the key in
this case would be was that just an aberration that concerns an aspect of obamacare or is it really going to be enforcing that very high standard across the board, which would be significant in other areas. >> we'll have more inside story in a moment. when we return from the break did the supreme court rule by not rul ruling? circuit court decisions were clamoring to be taken up by the high court. the court refused them all. couples in five more states will soon start getting married. stay with us.
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>> the artic. real reporting from around the world. this is what we do. al jazeera america. >> welcome back. i'm ray suarez. we're welcoming the supreme court whack to work fo --back to work for the 2014-15 year on this program. allowing rulings to ban same-sex marriage to remain in effect we leaves the states that such couples can marry to 24. we go to ginger singh, a member of the supreme court bar. jeffrey rosen, and bruce
fein, the author of "institutional peril." bruce did they make law by deciding not to make law here? >> i think that's accurate. the court believed it was not disturbed by the lower court decisions that there were no conflicts in the lower court decisions at the circuit level, and therefore they didn't see any need to step in because it was consistent with the decision last year in the windsor case that addressed a little different aspect of same-sex marriage discrimination, and i think the court may way be hoping that all lower courts will come out in the same way and won't enter a controversial area which reduces the political capitol they have to utilize in other areas. >> for those whose constitutional mechanics are a
little rusty, what is that such a big factor here? if one circuit had ruled out of concert with others would that have pulled the supreme court into it? >> yes, the best way to get your case taken by the supreme court is for the lower circuit courts to disagree . the it supreme court feels it will have to make a decision. when some rule against a marijuana equality, that creates conflict, and the supreme court would find it harder not to intervene even if it wanted to. in all the big marriage equality and gay rights cases the courts have hurd, there have been disagreement among the circuits. certainly in the obama case we've discussed the court is
waiting to find out if there is disagreement among the courts. it's not the significance of the case, the best way to get the supreme court to pay attention is for the lower courts to disagreement. >> help me out here, these states, utah, oklahoma, virginia, they're the homes of circuits who have ruled on this, but do other states in that same circuit get swept in when a court refuses to review that appellate case? >> yes, that's correct. when the fourth circuit decides, it decides for all of the states involved in that circuit: of those states maryland already has marriage equality, but virginia and the carolinas don't. they'll be equally bound by the fourth circuit's ruling unless they can get the court to reconsider it. >> if you want to get married
tomorrow in winston, salem, two guys, you can ask a county clerk to do it, and they have to do it? >> you can ask, but what will happen before those states laws is a federal court will have to declare it so. there will have to be more little gas station but it will be elementary. it will be a question does the fourth circuit ruling reach broadly enough. if so, those laws are unconstitutional and there is a right to get married. licenses are issued in virginia, and also we've heard that in certain counts in wisconsin, county clerks have started issuing licenses. >> the governor scott walker has conceded that as far as he's concerned this battle is over. gentlemen, thank you for being with me on the first day of the new term. that brings us to the end of this edition of inside story. thanks for being with us. in washington, i'm ray suarez.
>> welcome to al jazeera america. i'm david shuster in our headquarters in new york. we're waiting for a live press conference from the cdc. the center of disease control. we're expecting an update on the second update from a nurse who was treating duncan erik thomas. they have blamed a protocol breach for the nurse being infected with the virus, and that is