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Holding Court with Joan Biskupic

Holding Court
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Thursday, February 17, 2000

As presidential candidates and President Clinton and Congress argue over health care and patients' rights, the Supreme Court is taking up a case involving HMOs. The case, Pegram v. Herdrich, scheduled for oral argument on Feb. 23, presents the first big challenge to HMO cost-cutting practices that allegedly compromise medical care.

In addition, later in the month the court will look at two Fourth Amendment cases, Bond, Petitioner v. United States and Florida v. J. L., which involve citizens' rights and search and seizure. The Bond case focuses on whether a police search of luggage was illegal, and the Florida case focuses on a search resulting from an anonymous tip to police. This week, "Holding Court" looked at all of these issues, and others that came up as well.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EST. The transcript follows:

Joan Biskupic: Welcome to our session as we look ahead to three new cases the justices will take up in their February oral-argument calendar. The first tests when HMOs can be sued under federal employee-benefits law and the other two involve police searches that allegedly compromise civil liberties. So, let's get started.

Washington, D.C.: What will this HMO case mean to all of the states – not to mention political candidates – who champion people's ability to sue HMOs? The "Patients' Bill of Rights"?

Joan Biskupic: Good question. In a few days, Congress will begin the final negotiations over how far the government should go in regulating managed care and whether patients should be given broader rights to sue their health plans. Those talks and the campaigning in various states won't be affected by a ruling in this case because this case is tied to a particular law already on the books, one known as (bear with me): the Employment Retirement Income Security Act of 1974. ...... Even if the court rules that the woman in this case (whose appendix burst while she waited for tests) wins, the ruling would likely cover only a narrow set of circumstances. Right now, leaders on the Hill want broader patients rights.

.... But that said, both disputes evoke the same dilemma: the drive to hold down medical costs vs. the frustration of patients who think they're not getting proper medical care from their HMO.

Baltimore, Md.: I'm surprised that this HMO issue is a case that is being decided in federal court. Wouldn't you think this would be left to the states to take care of?

Joan Biskupic: Your instinct is partly right. The woman first sued under state law for malpractice. And won $35,000. But she also believed that federal law should bar HMOs from having policies that give physicians bonuses when they cut costs by limiting care. ... The precise legal question is whether an HMO, in this case one run by physicians, can be sued under the employee-benefits law known as ERISA (see above). The allegation is that the HMO breached its "fiduciary duty," that is, its obligation of loyalty, by having a policy that provided financial incentives to doctors to order fewer diagnostic tests.

Scott Depot, W.Va.: In this Internetted world where the conflict of laws are taking place at a global level, what is the attitude of the justices in recognizing the existence of laws other than American?

Joan Biskupic: The U.S. Constitution and our federal and state laws control the outcome of a case. BUT, some of the justices will often look to laws in other countries for guidance and information. Justices Ginsburg and Breyer are particularly interested in comparative foreign laws. ... In the physician-assisted suicide case a few years ago, when the justices referred to U.S. sentiment on assisted-suicide and euthanasia, some of them also surveyed the international scene.

Washington, D.C.: Privacy is a key issue, particularly in dealing with HMOs. For example, I had a doctor's office who incorrectly reported test results to my insurance company, and no one told me until I found out in a routine visit to the doctor a couple of months later. We're talking serious results – they mis-entered a code and told the insurance company that I was HIV positive when I wasn't. Is there federal legal recourse for people in such circumstances?

Joan Biskupic: Not that I know of.... It sounds like you got the matter cleared up, but if there was some harm to you, there might have been some state claim of injury.

Washington, D.C.: Dear Ms. Biskupic,
You broke the story about Edward Lazarus' book last year. Are you aware of the campaign that Justice Kozinski in California has been waging against Mr. Lazarus ever since, trying to get him removed from the USDA's office in Los Angeles? Are you aware that Justices on the Supreme Court have demanded that Paul Gewirtz, who blurbed Mr. Lazarus' book, rescind his endorsement or risk not having any more Yalie clerks? If you are, why have you not written about these matters?

Joan Biskupic: Hmmmmm. I'm putting up this question, but I fear that you might be exaggerating some of the facts. I know that Judge Kozinski (on the 9th Circuit in Calif.) was outraged by Lazarus's insider book on the court and that he has written and talked extensively about how he thinks Lazarus took advantage of his position as a Blackmun clerk, BUT I don't know that he would ever be in a position to get Lazarus fired. Lazarus was an assistant U.S. attorney. (I'm actually not sure whether he still is doing that. I thought he had gone into full-time writing on legal affairs.) And I know Paul Gewirtz but I don't know that any justice pressured him in any way to rescind his endorsement. I actually didn't even know Prof. Gewirtz endorsed the book! ... For those of you who don't know about his book, "Closed Chambers," it set off a stir in legal circles and at the court(and obviously continues to reverberate) because a former clerk had never before written so much about what goes on behind closed doors. It was publicized as a tell-all book, but Lazarus later asserted that he wasn't revealing anything that he knew by virtue of being a clerk, rather that he was revealing what he had discovered after he left the court, sort of as an investigative reporter.

washingtonpost.com: Can you talk a little about the search and seizure cases coming up later this month?

You can find more information about February cases on our February docket page.

Joan Biskupic: One involves whether police can stop and frisk someone based only on an anonymous tip that the person is carrying a firearm. The other case tests whether police can feel your bags and other luggage when they are in the community racks of a bus. A lower court judge said bus travelers have no expectation of privacy under those circumstances, so no Fourth Amendment protection against unreasonable searches.

.... Raising the stakes in these two new search cases is that the justices last month gave police new leeway for other search situations. The justices said police may stop and frisk a person who runs at the mere sight of an officer, simply because he ran. ... So it's a big term for Fourth Amendment cases.

Washington, D.C.: Could HMOs ever be held liable under interstate commerce or other laws?

Joan Biskupic: Well, there are numerous class-action lawsuits now pending trying to hold HMOs liable under federal racketeering law. Meanwhile, there have been various attempts to sue health plans under state laws. .... A number of cases alleging that HMOs didn't reveal physician financial incentives and that they deceived health-plan members to increase profits have been filed under states' fair-business statutes.

washingtonpost.com: Passengers should have no expectation of privacy when their bags are on community racks? Aren't they still private property? Why should police be able to feel these bags? Doesn't that amount to a search?

Joan Biskupic: Glad you followed up with that question. The Fifth Circuit ruled in that case (Bond v. U.S.) that when someone puts his bag in an overhead luggage bin or any common area of a Greyhound bus, he should expect it to be moved or squeezed by others. So when a border patrol agent went through the bus and felt a square brick (which turned out to be methamphetamine) in Bond's bag, Bond couldn't claim that his privacy had been violated and that he had been subject to an unreasonable search. THe appeals court said that he had effectively exposed his personal property to the public, and to the government. But the Supreme Court took Bond's appeal, and we'll know after the Feb. 29th oral arguments, if some of the justices are troubled by that reasoning.

Beltsville, Md.: Over the years, I have seen the court make a number of conflicting changes to the police powers to stop, etc. Do you see Miranda getting wiped? Thanks.

Joan Biskupic: Good question. I think the court is going to continue to make exceptions to Fourth Amendment protections. BUT I do not think that Miranda will be reversed. I think that a majority is committed to that 1966 landmark (saying cops must read suspects their rights to remain silent, etc.).... I predict that the 4th Circuit's ruling against Miranda will be handily reversed when the justices hear and decide the case this spring.

Washington, D.C.: Re: Judge Kozinski and Edward Lazarus. I've been following this story closely (I'm clerking on the Ninth Circuit next year), and I haven't heard that Judge K. is trying to have Lazarus fired. However, Judge K. has stated that he will not sit on a panel hearing a Lazarus argument – if K. was assigned to a panel before which Lazarus was supposed to argue, the U.S. Attorney's office would have to use a different AUSA, or K. would recuse himself.

Joan Biskupic: Yes, I heard that too. And thanks for writing in. I'm hesitant to post any of this ongoing speculation about Lazarus and Kozinski, but it lets readers see how much controversy continues to dog that book, simply because clerks usually don't make public what goes on behind closed doors. ... I personally am glad for any inside info.

Washington, D.C.: Next week the court is looking at how the comp time and overtime provisions of the Fair Labor Standards Act apply to Harris County, Texas. In light of Kimel (which held that Congress exceeded its power when it applied the ADEA to the states) wouldn't the same theory apply to the FLSA? There was a case about 10 years ago called San Antonio v. Garcia that raised similar issues.

washingtonpost.com: Full text: Garcia v. San Antonio Metropolitan Transit Authority (1985) (FindLaw)

Joan Biskupic: The question in this case is whether a county sheriff's department or any public employer can tell employees how to use their comp time. But I don't know that the case directly implicates the Fair Labor Standards law the way that Garcia did in 1985. That's the case that said the FLSA could be applied to states, counties and municipalities. (And you're right to suggest that it still rankles the states' rights justices on the court today, the ones who helped make the majority in the Kimel case)... I think the court can more narrowly decide this dispute, under the terms of the FLSA. The case isn't framed as a direct challenge to Fair Labor Standards coverage and the reach of federal power.

Arlington, Va.: Do clerks sign non-disclosure agreements, or is it mostly just expected to be a matter of honor not to say anything about their tenure clerking?

Joan Biskupic: They are definitely expected to agree to a confidentiality pact (and it's gotten stricter over the years), but I don't know if they actually sign a piece of paper. Anyone out there know for sure?

Washington, D.C.: But if the bag is closed, is it really being exposed to the public? Couldn't you argue that if it's zipped shut, a privacy right can be assumed?

Joan Biskupic: That's what Bond is saying, that it was a closed bag that contained his personal items and he expected it to stay that way. But the Justice Department, which has urged the high court to uphold the 5th Circuit ruling, says that once Bond "exposed" his baggage to handling by a host of other people (passengers moving it around in the rack), he lost the right to claim that it was a "physical invasion" when the border agent went up and down the rack squeezing bags for suspicious objects.

Denver, Colo.: I have read lately that the next president may appoint as many as two or three new justices. Who is likely to retire in the next four to eight years?

And, despite whom is chosen to fill those spots, aren't many -but not all- Supreme Court appointments disappointments as far as following an expected agenda?

washingtonpost.com: Joan gets this question every week. Take a look at the Holding Court archives.

Joan Biskupic: Hello, Denver! And, yes, as the washingtonpost.com producer notes, this is a recurring question. BUT, it's an interesting one. I think the next president will get two appointments and that the two justices most likely to retire are Chief Justice Rehnquist and Justice Stevens, simply by virtue of their ages and tenure. ... And justices have indeed turned out to be disappointments to the presidents who nominated them (or at least to the politicos in the administrations). Former President Bush hasn't complained publicly about David Souter, who turned out to be more liberal. But plenty of people associated with the Bush administration have. And there's the old line that Eisenhower supposedly said, that he made two mistakes in his presidency and they were both sitting on the Supreme Court: Earl Warren and Bill Brennan.

New York, N.Y.: What do you think has been the most significant issue-legacy of the Rehnquist court? What will be the most significant issue in the coming decade and century? Courts have dealt with civil rights, personal freedoms – will technology and privacy be the next?

Joan Biskupic: This is a big question, but I'll bite off a bit. I think the Rehnquist Court has significantly curtailed the avenues for Death Row and other prisoner appeals. It has enhanced state power, at the expense of Congress. It has continued the trend of the Burger Court of strengthening the power of law enforcement. In terms of more personal individual liberties, it has narrowly upheld abortion rights, adopted a "right to die" and suggested that one day there may be a right to physician-assisted suicide. ... The court has given Internet speech great First Amendment protections, but, as you suggest, I think we'll see a lot more high-tech and Internet cases down the road....

Joan Biskupic: That's it for today. Thanks to all who joined in. ... I'm sure I haven't heard the end of the Kozinski-Lazarus fall-out and maybe I'll have some juicy clerk news to report during next week's session. ... Remember, we'll be back at our regular Friday time. The justices return to work themselves next week and will be issuing opinions as well as hearing arguments. We might finally see rulings in two cases that were argued last October and are obviously giving the justices some trouble: one on limits to Death Row inmate appeals and the other involving alleged racial discrimination in Hawaii.

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