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Holding Court with Joan Biskupic

Holding Court
Related Links
Hawaiian Voting Limit Rejected (Feb. 24)
High Court Examines HMO Policy (Feb. 24)
High Court to Hear Case on Drug Roadblocks (Feb. 23)
Death Row Inmates Caught in Procedural Trap (Feb. 23)

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Friday, February 25, 2000; 11 a.m. EST

The Supreme Court is back in session this week, and oral arguments ranged from HMOs and Medicare fraud to the Fifth Amendment rights of President Clinton's confidant, Webster Hubbell. On Wednesday, the court struck down a voting law in Hawaii benefiting the descendants of the original inhabitants of the state, ruling that the law unfairly draws distinctions based on race.

In addition the court's decision to hear a case about police roadblocks and random drug inspections, represents a great controversy over personal freedom and police power. Scheduled for argument next fall, the case involves a 7th Circuit opinion declared the random checks invalid, stating that police cannot stop drivers without cause for suspicion. As the court turns its focus to individual rights, "Holding Court" looks once again at the issue of privacy, police power and the business of the court.

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. Before we begin taking questions about news from the court this week, I want to tie up loose ends from last week. Someone wrote in about the flap over Edward Lazarus's 1998 book, "Closed Chambers," whether Judge Alex Kozinski was trying to get Lazarus fired from his job as a federal prosecutor, and whether a Yale law professor had been pressured into withdrawing a blurb of the book.

During our on-line conversation, I relayed what I knew and then we heard from a 9th Circuit clerk and some others about the deal. Without spending too much time on this today, I wanted to bring everyone up-to-date. Judge Kozinski out in California is still very angered that Lazarus, a former clerk to Justice Blackmun, would write about what went on inside the court during his time there. "If I see him in the courtroom, appearing in a case, I will walk out," Kozinski told me. But the judge also said he never tried to get Lazarus fired from his job as a U.S. attorney in Los Angeles. Kozinski said he did declare he would never sit on an appeal of a Lazarus case, but the circumstance has never come up to be tested.

For his part, Lazarus is now working for Talk magazine. Of the whole ordeal, he told me, "Anyone who publicly supported me was put under tremendous pressure by [federal] judges. And Judge Kozinski is certainly on record saying things that were clearly intended to affect my tenure as a prosecutor in Los Angeles." Lazarus said he wasn't pressured by his bosses to leave the office but wanted to move onto legal affairs writing.

The on-line reader who started all this last week had asked about Yale professor Paul Gewirtz's endorsement of the book. Gewirtz didn't have anything to do with the book. What the reader might have been thinking of is a dust jacket endorsement written by Yale dean Anthony Kronman. I have heard lots of versions of how much (or how little) Supreme Court justices pressured him to withdraw his blurb, and I've received copies of correspondence among several of the parties involved. The bottom line is that last year Kronman wrote to various former law clerks and current justices saying he regretted not having thought about the "ethical implications" of the book before endorsing it. ... And that (for us, for today) is that! Now, let's talk about what's going on at the court.

Richmond, Va.: What are the implications of this Hawaii decision this week?

Joan Biskupic: On one hand, the ruling only affects Hawaii and its unique voting system for trustees of an agency set up to help descendants of the original islanders. Only people who can trace their ancestry to those islanders can vote for the trustees. BUT, the ruling could have broader implications for the court's efforts to end policies that give advantages to racial minorities and others who've faced discrimination.... It was the first time the 15th Amendment, which was adopted to protect the voting rights of blacks, was used to help a white man (who had protested the Hawaii voting scheme).

Washington, D.C.: I was so glad to see the court is taking the drug-roadblock case! Could we actually be seeing the Rehnquist court taking a crack at a big issue of personal freedom and rights rather than just strict interpretation?

Joan Biskupic: You're referring to the court's decision to take a look at the Indianapolis practice of setting up roadblocks to do random drug inspections. A lower court struck it down. But other federal and state courts have approved the practice, and a decade ago, the justices upheld sobriety check-points. I'm not sure where the court will go with this one, but I wouldn't rule out its reversing the lower court and saying that drug stops (with agents and sniffing dogs that circle the car) aren't too much more of an intrusion on motorists than the drunken-driving checkpoints the court approved 10 years ago.

Silver Spring, Md.: When is the court's ruling on grandparent visitation expected to come down?

Joan Biskupic: This case was just heard last month, so I wouldn't expect it before May. The court recesses at the end of June – early July, so look for a ruling sometime in those last six weeks.

Washington, D.C.: I can't help but notice a trend among cases either being heard – the two drug-search cases you talked about last week – and this new one the justices agreed to hear next term. Why is this issue suddenly hot and these cases getting accepted by the court?

Joan Biskupic: Good question. And a relevant one. The court has two good Fourth Amendment police search cases next Tuesday. The justices have regularly taken up search cases and in recent years relaxed the rules for cop searches, so it's not that we're in a new field. But, what we're seeing is the fallout from some of the zero-tolerance policies out there. Officers wanting to search someone simply because he ran from police. Officers wanting to break up crowds hanging out on city streets even if no wrongdoing has occurred.

Arlington, Va.: A procedural question: When a new U.S. president takes office, does that president have the ability to appoint a new chief justice from among the other sitting justices, and to relegate the current chief justice to just a "regular" justice?

A related question: Any thoughts on how the results of the November election will influence the composition of the court? Any likely resignations or other reshufflings?

Joan Biskupic: I like that: A new president comes in and says, "Rehnquist you're out. We're moving up O'Connor." But, alas, that's not how it happens. If the current chief justice retires, the new president can appoint anyone to fill the spot, from among the current ranks or from outside. If Rehnquist doesn't resign, the president has to live with him. All of the justices are appointed for life. ... And your second question comes up all the time (you might want to look at past transcripts for more details about the current group, speculation about possible replacements). In brief, I think there's a 50-50 chance Rehnquist and Stevens (they're the oldest two) will retire sometime over the next four years. Any new justice, particularly a chief, could greatly affect the balance on the bench. There's only nine of them, of course, and just one person can shift the dynamic among them all.

Owings Mills, Md.: Rehnquist and White dissented in Roe, but didn't support overturning Roe in Webster. However, they both would have used Casey to overturn Roe. Was this because the Pennsylvania statute in Casey was more of a direct attack at Roe itself, while Webster basically tinkered around the edges? Also, is Roe in any danger with the big late-term abortion case?

Joan Biskupic: Both Rehnquist and White continued their efforts to reverse Roe, after the 1973 ruling. But I don't remember how strongly they expressed that in Webster... I do know that Justice O'Connor's vote stopped them from reconsidering the larger question of abortion rights when they upheld the Missouri restrictions in that 1989 case. And you're right, the 1992 Casey dispute directly called into question the validity of Roe. ... I don't expect the "partial birth" abortion case to be argued in April to raise core issues about the legitimacy of Roe v. Wade; rather, it is likely to decide standards for states that want to restrict certain types of abortions.

Baltimore, Md.: Can you talk a little more about the Hawaii voting case? Do any other states have similar laws – in the Southwest, for example, like Texas or Arizona?

Joan Biskupic: The case arose from Hawaii's unique history and government efforts to make reparations to those whose culture was obliterated by white settlers. So, as such, it's a one-of-a-kind case. But, the justices could have ruled in a way that affected Native American policy in various states. (The federal government had defended the Hawaii voting restrictions based on the fact that the derive from federal policy on behalf of all indigenous peoples.) The court majority, however, looked at the dispute squarely in the context of 15th Amendment voting rights and didn't need to get into the intricacies of various policies that give special treatment to Natives.

Jefferson Md.: What's the guessing on the Miranda count? Will O'Connor break the tie?

Joan Biskupic: I hate to make predictions before oral arguments, but I think the court will reverse the 4th Circuit and let Miranda v. Arizona stand. And I don't know if O'Connor will need to break a tie. She and Kennedy, our usual swing votes, might already be included to support it.

Arlington, Va.: On the HMO case, the justices appeared to me reluctant to provide federal relief for malpractice. But I think there was a reference to the federal employees health plan in there somewhere. Will it be decided that federal employees have no redress against cost-saving over care?

Joan Biskupic: Hmmm. I don't know about this one. But the issue wasn't whether a federal malpractice case could be brought. I think everyone agreed that state laws cover malpractice cases pretty well. The question was whether federal employee-benefits law could be a vehicle for suing an HMO that gives doctors bonuses to avoid tests. (The case was brought by a woman whose appendix burst while she waited the requisite eight days for a sonogram.) The issue is whether the federal law can stop managed care plans from giving physicians financial incentives that might compromise their medical obligations to patients. The question at the core of the case doesn't naturally divide health plans covering regular workers from those covering federal employees ... but I'm not familiar with the law in this area for fed workers.

New York, N.Y.: How have the courts treated the definition of the "practice of medicine" and how have the courts treated and defined the "unauthorized practice of medicine?" Are HMOs subject to the same level of scrutiny in deciding whether they have engaged in the unauthorized practice of medicine?

Joan Biskupic: Now we're really into an area that I don't know much about and that wasn't implicated in the case. BUt the question does show the controversy around HMOs and patients' concerns about whether they're getting the care they think they deserve. ... Watch for a ruling in this case later in the spring, and also see what happens on Capitol Hill as a conference committee begins ironing out managed-care legislation.

washingtonpost.com: Feel free to ask the questions about federal workers' health care in Mike Causey's Federal Diary discussion on Monday.

New York, N.Y.: How were the oral arguments this week? Specifically, how did the justices act during the argument on the Webster Hubbell case?

Joan Biskupic: Good question. The world hasn't forgotten about Web Hubbell's tax problems and this part of Ken Starr's prosecution. The question is whether information in a huge load of documents that Hubbell turned over to prosecutors under a grant of immunity can be used against him. THe justices appeared sympathetic to Hubbell's lawyer's arguments that once he produced the documents and testified truthfully before a grand jury about what was in them, the government couldn't come back (after digging deeply into the docs to find evidence) and use them against him. ... This is a complicated case testing how broadly the Fifth Amendment privilege against self incrimination applies to a load of tax and business records.

Seattle, Wash.: I would like to know how to research on the Web Supreme Court opinions on the right of an individual state to administer federal natural resources outside of the three-mile limit.

washingtonpost.com: Start with our Supreme Court Opinion search page, which is powered by a site called FindLaw.

Joan Biskupic: I agree, that's a good starting point.

Curious, N.D.: I'm not in the law community, so bear with me, please. What is the difference between a judge and a justice? And what does a clerk do? Your discussions are very informative to the lay audience. Thanks.

Joan Biskupic: Hello, Curious. In the federal courts, only the members of the Supreme Court are called "justices." All the lower courts have "judges." But they all do the same thing, decide cases, just at different levels. And law clerks are lawyers hired to help justices (or judges) research cases and write opinions.

Joan Biskupic: That's it for today. Thanks to all who participated. We have a lot of traffic on-line today, in part because of George Bush's upcoming appearance. Watch for him later this morning. Maybe someone will ask him who he wants to put on the Supreme Court! See you next Friday.

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