Post Politics: Supreme Court, Sanford, More

Robert Barnes
Washington Post Staff Writer
Friday, June 26, 2009; 11:00 AM

Discuss the latest news about the Supreme Court, including its decision this week in the case of a 13-year-old girl strip-searched at school, Congress, the Obama administration, upcoming elections and more with Washington Post staff writer Robert Barnes. He was online Friday, June 26 at 11 a.m. ET.

A transcript follows.


Robert Barnes: Good morning everyone. Busy week, but then they all are these days, aren't they? My focus, the Supreme Court, will finish up on Monday with three remaining important cases. The justices surprised us this week with lopsided decisions in two of the term's most contentious cases -- whether a key provision of the Voting Rights Act is constitutional and how to deal with the strip search of a 13-year-old in school. In both, they were able to agree by not moving the ball very much. But we can also chat about the president's ambitious agenda on Capitol Hill, or Sonia Sotomayor's nomination. I've also heard a Southern governor is in some political trouble. What's on your mind?

_______________________ Voting Rights Act Upheld, But Court Hints at Change

_______________________ Student Strip Search Illegal


Waterville, Maine: I have a question about the "process" of court decisions. How does a state Supreme Court (or the U.S. Supreme Court) make a decision about when to release a decision? I am thinking specifically of the Minnesota Supreme Court in the Coleman vs. Franken case. The justices had read the briefs ahead of time, heard the oral arguments and certainly understand the urgency of the situation in Minnesota only having one U.S. Senator represented in Congress. What then, could possibly be the hold up in issuing a decision? Could it be that politics have a larger role than is commonly assumed?

Robert Barnes: Obviously, I don't have any inside information into what's going on in Minnesota, but at the U.S. Supreme Court, decisions are handed down when they are ready, and there are a number of things that can delay them. All of the justices either sign onto an opinion or dissent, or write their own either concurring opinion or dissent. That can take time on a contentious issue that the justices consider important. For instance, a case decided just yesterday -- Melendez-Diaz v. Massachusetts, concerning whether criminal defendants have a right to cross-examine crime lab analysts -- was argued more than seven months ago. The ruling contained a 28-page majority opinion and 35-page dissent. I would also think the Minnesota justices are aware of how closely scrutinized their decision will be.


Arlington, Va.: Does the delay in the Connecticut firefighter promotion case indicate that the justices are still arguing and working on it? Or is it finished, but they delay releasing cases for other reasons?

Robert Barnes: I suppose they could still be working on it, but I would imagine arguments are long past. The justices usually decide on the outcome of the case the week they hear it, and the rest of the time is taken up with writing the opinions and dissents. Again, I think they realize this is a case that could have big implications and will be closely examined. Also, it was one of the last cases argued.


St. Paul, Minn. : Hi Robert -- Thanks for taking questions today. In the aftermath of the Sanford affair this week, do you think we'll see less emphasis from Republicans in election campaigns on family values, same sex marriage, etc.? Along the same lines, do you think we'll see more challenges to that type of campaigning, given recent events?

Robert Barnes: You know, I don't think so. I would think you might see a little less of those who live in glass houses throwing stones. I think whenever one of these stories breaks, the search for hypocrisy is one of the things that can be the most damaging. And Sanford's case, which raises issues of dereliction of duty and taxpayer funds used for a trip to visit his mistress, goes to a whole new level.


Re: Cop out on health reform: Up front, I am a huge Obama fan, but that support will be sorely tested if what I hear is true -- that Obama is thinking about dropping the public option (i.e. government-run health plan). If that is true, as Paul Krugman says this morning, "Are you as worried as I am that Obama will compromise on health reform to the point of what's the point?"

What are you hearing (except the cheers from the private insurance companies) about Obama's willingness to forego the public option? And why would he do it, because it is what a majority of Americans want?

Robert Barnes: I think we are about to enter a period of extraordinary horse-trading on the health-care plan. It will be fascinating to see just what everyone is willing to give up to be able to claim a victory in providing some type of health care reform. Unlike you, I'm not so sure about what a majority of Americans want done -- except something.


Summer winds: Are the nomination hearings still set to conclude before the August recess? Are the Republicans making any headway in delaying the hearings? Is her confirmation above or below a 90 percent probability at this point?

Robert Barnes: The hearings are still scheduled to start on July 13. I don't think there is a formal schedule yet, but in the past they have lasted four days. That would give time for a committee vote, Senate debate and a vote before they leave for recess on Aug. 7. It seems likely all that would happen unless something new comes up about the judge or something significant happens at the hearings.


Strip searching children: What was Justice Thomas' rationale for dissenting?

How did the parents find out that their child had been searched?

Robert Barnes: Justice Thomas felt that judges should not second-guess school officials who have the responsibility for keeping drugs out of school. It is reminiscent of previous opinions and dissents he has written about discipline in the schools. You can read it for yourself at this link.

As for Savana Redding's mother, she was furious when she found out about the search and with the school's delay in meeting with her once she knew. From going out there and meeting with her, I couldn't help but get the feeling that, even after the search, this lawsuit would not have advanced so far if school officials had handled things differently.


Baltimore, Md.: Broader implications from the strip search decision: Your Post colleague Marc Fisher often decried the "zero tolerance" policies most school districts have in force (and which led to that strip search) because they not only deprive kids of rights that any adult would receive, but they also make it possible for schools to dodge hard disciplinary decisions because they remove all grey areas. Do you think the Supreme Court decision will affect "zero tolerance?" Thanks.

Robert Barnes: No, I don't. The court has found that officials have a special interest in maintaining drug-free schools, and have more leeway in conducting searches than law enforcement. Yesterday's decision doesn't even ban strip searches. But it puts school officials on notice that such searches are "categorically distinct" and that they must have well-grounded suspicions that the student possesses dangerous drugs and that they are concealed in the student's underwear. I would think, though, that most school board lawyers would be advising their clients not to do it.


re: Melendez-Diaz v. Massachusetts: Bob: So how was this one decided?

Robert Barnes: Five to four decision written by Scalia, the court's great defender of the Confrontation Clause. The dissent written by Justice Kennedy, who is more used to deciding these cases than objecting. And the court's usual ideological line-up was not in evidence. A link to my story follows.

_______________________ Defendants Have Right To Confront Analysts of Forensics, Court Rules

Robert Barnes: Here.


Washington, D.C.: A comment and a question: first, I think people need to remember that whatever the health care bill that gets passed right now, it is not likely to be the last health care reform bill that gets passed in the next two years. That said, I hope that the public option is in there.

The question: is one of the remaining Supreme Court cases the Sarbanes-Oxley case? Any thoughts on where the Court is going with it?

Robert Barnes: You think they will do this again so soon? I guess I'm skeptical.

On your other question, the Sarbanes-Oxley case, Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al., will be heard in the term that begins in October. A little too early to guess on that one.


Falls Church, Va.: What were your impressions of Sanford's news conference? I thought it was one of the strangest I have seen.

Robert Barnes: Disastrous, yet one of the most human I've ever seen. I felt like I was watching someone having a breakdown rather than someone dealing with a political problem.


Poplar Bluff, Mo.: Robert, thanks for the questions. The strip-search case from Arizona was intriguing because of the 8-1 vote. Why was Justice Thomas the lone dissenter? What was Justice Scalia's view of the case? Thank you.

Robert Barnes: We've already discussed Thomas. Justice Scalia signed on to the majority decision by Justice Souter--his last on the court?--without a concurring opinion. The whole thing was in great contrast to the intense oral argument, where Justice Ginsburg seemed so exasperated by the questions from her colleagues she might explode. Which for her would mean raising her voice.


New York City: Other countries have systems that prioritize health care treatment on the basis of need --- a triage system. But somehow we prioritize health care on the basis of who can pay. And in the most perverse form of rationing there is, we make the sickest people have the most difficult time getting access to health care. (The sickest, after all, can't hold down a job, so the employer- based system doesn't really work for them.) The debate we read in the media really should be about irrational rationing vs rational rationing -- and the US is the undisputed leader of the first method. Because when we set our minds to it, nobody can be as irrational as we are. Any thoughts, Robert?

Robert Barnes: When most people are happy with the health care they receive, which I think most polls show, it is hard to change the system. And I think this is the case even though it is also true that most people are worried their health care won't remain as good and that they think it's too expensive and that they are worried about others not as fortunate.


While you are guessing...: Cuomo v Clearinghouse? What is the pop wisdom saying on that? I remain perplexed in the aftermath of Wachovia why they took Cuomo.

Robert Barnes: I have already been wrong twice this week on the outcome of cases, so I am reluctant to call this one. I think if the court decides only federal regulators have the right to police national banks in regards to allegedly discriminatory lending practices, there will be pressure on the Obama administration to step up the enforcement.


Prescott, Ariz.: The court just rules that every time a piece of evidence is analyzed by a scientist or lab tech, that person must testify in court so that a defendant can face their "accusers". This pretty much shuts down our drug war, doesn't it? As I'm thinking, if I was to get busted for minor cocaine possession, would it make sense for the tech from the lab that confirmed it was indeed cocaine to fly halfway across the country to testify at my trial and the hundreds of others they process a day or week?

Robert Barnes: I'm not sure why he or she would be flying across the country, but you give voice to worries that were expressed in the dissent about how this would work. On the other hand, many states and the District of Columbia already have procedures in place similar to what the decision would require, and drug trials have not halted in those places.


Robert Barnes: We're out of time, folks. Thanks for being there and for reading The Post. Stay in touch, we're always here.


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