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Holding Court with Joan Biskupic

Holding Court
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Rulings Due on Police Searches (Feb. 26)

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Friday, March 3, 2000; 11 a.m. EST

The privacy of a citizen's medical records is without question one of the most hotly debated issues. But who is to say where privacy concerns end and public health concerns begin? This week, the Supreme Court agreed to decide a case on whether public hospitals can test pregnant women for drugs and turn the results over to police. At issue is whether the tests constitute an illegal search under the Fourth Amendment; a federal appeals court ruled last year that the tests were constitutional.

The court was also the stage for other controversy this week, as dozens of people were arrested at a demonstration in support of former radio journalist Mumia Abu-Jamal, who is seeking a new trial after being sentenced to death for killing a Philadelphia police officer. The justices rejected an appeal by Abu-Jamal earlier this term.

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: This week we lost one good case and gained another. The justices ended up dropping a disabilities-rights dispute from the calendar because the parties settled. (A related case had settled the week before, so now, to the gratification of advocates who worried that the court was ready to restrict the scope of a 1990 landmark, the justices won't be ruling on the ADA this term.) But last Monday the justices picked up a intriguing dispute over whether public hospitals can test pregnant women for drug use and give the results to police.

Washington, D.C.: How did Justice Breyer get chosen to read to kids? Do the other justices do things like this too?

Joan Biskupic: Good question. That was a delightful session yesterday. I wandered up to the library to hear him, just because there wasn't much else going on in the building at the time. But it was so worth it. Breyer was relaxed and really wanted to tell the kids what it was like to be a justice. One of my favorite moments came when he told the kids he thinks it's really cool when the red velvet curtains part and he and the other justices step out to ascend the bench. ... The justices get requests all the time to meet with groups. In this case, the National Education Association was looking for a justice to be part of its annual reading day, in honor of Dr. Seuss's birthday, and Breyer agreed to it.

washingtonpost.com: Story: Stories, Secrets from a 'Lucky' Justice (March 3)

Washington, D.C.: What prompted the settling of the ADA cases? And will the justices accept more cases to fill the newly empty spots on the docket?

Joan Biskupic: The overriding motivation was on the part of the disability rights community, which worried that the Supreme Court would use the cases – concerning whether states could be sued for bias against disabled people – to scale back on the 1990 Americans with Disabilities Act. So advocates put pressure on the parties to settle. But it also was pretty clear that politicians in Florida, who had convinced the court to hear their arguments that they shouldn't be covered by the law, thought it wasn't in their best interests either to keep this controversial topic in the news. Some people speculated that in an election year, Republican Gov. Jeb Bush and Democratic Attorney General Bob Butterworth, who's Al Gore's campaign chairman in Florida, didn't want to look like they were against disability rights. ... And, no, the justices have not added new cases to their April calendar to replace the ADA disputes from Florida and Arkansas.

washingtonpost.com: Story: 2 Appeals Involving Disabilities Act Voided (March 2)

Minneapolis, Minn.: With the recent courts decisions compromising the ADEA and ADA laws, can we terminate the judges based on their age and their disabilities?

Joan Biskupic: You obviously sympathize with those who want to keep the new ADA cases away from this court.

New Haven, Conn.: When is the court going to rule on Williams v. Taylor? It seems to be the one of the last October-term cases left. How do you think the vote will line up on the Lockhart v. Fretwell question?

Joan Biskupic: That's what we'd all like to know. The justices heard the case of Williams v. Taylor on Oct. 4... the first day of the term. And it's the only case left from the October session that hasn't been decided. This is a complicated area of death penalty appeals and the justices are obviously having some trouble with the case. Look next Monday, March 6th... we're going to get opinions that day. And if it doesn't come then, the next possible date for a ruling will be the end of the month, after the justices take a two-week recess.

Long Beach, Calif.: Hi Atny. Joan Biskupic,

I have only one child my son who is serving a sentence of 25 years. His crime doesn't fit this type of ruling on him. He was in the wrong place at the wrong time. For just a small review of his case: he walked into his girlfriend's house, he asked her friend was she there they said no, he ask to use the restroom three-strike law. My question: Is it possible that this three-strike law will be overturned for a non-violent crime?

Thank you

Joan Biskupic: Your brief detail of the crime was a bit hard to follow, and I'm afraid the best I can do is say that the Supreme Court is not currently considering any case on the three-strikes controversy that would help your son.

washingtonpost.com: How were the police power oral arguments? Do you think the Diallo verdict had any particular impact on the flavor or tone of the arguments?

Joan Biskupic: The arguments were very lively, and this was a rare pair of police-search cases that drew a lot of skepticism from most of the justices. (They didn't mention the Diallo verdict, tho they did bring up the Columbine shootings... But one of the lawyers did mention police controversies in N.Y. and L.A.) The first case concerned whether police can squeeze or feel soft-sided luggage in an overhead rack, say, on a bus or plane. The federal government, in a case involving a brick of methamphetamine that was found, said that travelers do not expect their luggage to remain private once they put it in a common area. So, the government contends, it's not a police search covered by the Fourth Amendment.... But many of the justices suggested by their questions that they think bags do remain private, even when they're thrown into an overhead rack. The second case was on anonymous tips involving firearms, and again the court seemed skeptical of arguments that police should be able to stop and search someone – in this case, without verifying the tip. The justices seemed worried about people passing on tips to police as part of vendettas.

Baltimore, Md.: Did you see any of the protests at the court earlier this week? What's the word about the Abu-Jamal case, and what do you think will happen next?

Joan Biskupic: ABout 185 people were arrested outside the court last Monday during the protest on behalf of Mumia Abu-Jamal, who was sentenced to death for killing a Philadelphia police officer in 1981. ... The demonstration was only indirectly aimed at the court. His appeal isn't up there right now (the justices turned down one last October); Abu-Jamal's legal options are back in state court. The former Black Panther and radio journalist has been trying to get a new trial.

Shreveport, La.: Last year, some conservatives floated the idea of Justice Scalia running for president, but few took it seriously and he apparently had no interest. He seems to attract fierce loyalty from conservatives. Has he ever publicly referred to the affair?

Joan Biskupic: That's a good question. He does have quite the following from the right flank... I've never heard him mention it, but I haven't been to all his speeches. He's quite the quipster, so I could see him referring to it in humor: "Nino for Pres!"

Arlington, Va.: While I agree with the premise of the drug tests for pregnant woman as a public health issue, the implications for the concept of illegal search are really scary. Isn't this a slippery slope? Couldn't someone ultimately translate this into a right for sterilization or medical treatment for addicts or the disabled? Besides, does this sound like something the Rehnquist court would go for?

Joan Biskupic: The idea of police and medical staffs working together certainly is scary to many people. In fact, I don't think any state court has allowed its public hospitals to test mothers for cocaine use, the way Florida sought in this case. (The 4th Circuit federal appeals court upheld the practice.) It's a good sign for the group of 10 women challenging the practice that the high court took the case. The justices may be inclined to overturn it.... But we'll see next fall.

Atlanta, Ga.: Did you get a sense that the justices bought the soft-sided luggage-no expectation of privacy argument? Which, frankly, I think is B.S.

Joan Biskupic: Many of the justices emphasized that there's a difference between throwing one's luggage up in a rack and knowing that fellow travelers will move it around ... and putting it up there and becoming vulnerable to police probes of the bags for contraband. The vote is likely to be close, and I think this might end up being a rare win for a defendant in a Fourth Amendment search case.

washingtonpost.com: Wouldn't he make it "El Nino for Prez!"?

Joan Biskupic: Yes, Justice Scalia loves to play with language, so nothing would be without a double-meaning.

Cincinnati, Ohio: When you're expecting opinions to come out on a certain day, do you know ahead of time how many cases will be decided?

Joan Biskupic: No. We're told only whether it will be a "regular day," meaning fewer than five opinions, or a "heavy day," meaning five or more. ... We work with very little information! ... But, of course, the core of this beat is what's down on paper, the rulings themselves.

Palatine, Ill.: In the past few weeks, the court has handed down several unanimous opinions as well as a couple of per curiam decisions. The issues in neither type of opinions seem to be any more compelling or far reaching than the other. My question: What criteria do the justices use to decide if an opinion is to be written as a per curiam opinion, and who makes that decision. Since the author isn't identified, wouldn't the author feel a bit slighted that his or her effort isn't acknowledged? (Or are the justices above such feelings?) :-)

Joan Biskupic: No, the justices aren't above such feelings. They've got egos like the rest of us, only more educated ones. But "per curiam" opinions are different. They're used only when the court believes the issue is a straight-forward one and that the bottom-line ruling flows obviously from the law as it already stands.

Raleigh, N.C.: How many cases that have been scheduled on the docket are typically settled before oral argument?

Joan Biskupic: Only one or two a year. It's very rare. If a party has gone through the trouble and expense of convincing the court to take his case, he usually doesn't walk away. (And by that point, settlement talks have usually stalled.) BUT, the other party can make it worth it to him, with money or some political incentive.

Washington, D.C.: There are some things about the U.S. Supreme Court that I am curious about. Why don't the justices hear cases for three months? Is that a tradition, or is there a law that permits that? Other federal courts meet during the summer months. Do the justices get more annual leave than other federal judges? Please don't tell me how hard the justices work. The number of cases they consider has dropped, and they have clerks and other employees. It seems the four months allows the justices to write books and make speeches. As a taxpayer, I think a lifetime appointment as a justice does not justify that extended period not hearing cases.

Joan Biskupic: I actually hear this complaint a lot. There's a lag time between when the justices accept a case and when it is heard, so that the parties can prepare written briefs. The justices spend an hour in oral arguments but days poring over written arguments, amicus filings, lower court rulings, etc. ... Their summer vacations are part of tradition, which I'm not going to defend. However, assuming none of my editors are reading this, I have to say I rather like that the court's gone all summer.

Ithaca, N.Y.: I am a criminal justice student and I would like to know more about sexual abuse cases and there verdicts. How can I obtain them? I also would to know more about sexual harassment suits obtaining to the work place. I have a problem with harassment where I used to work and I would like to know how to solve it. Thank you very much.

Joan Biskupic: Cases arising from sexual harassment on the job are often filed under federal anti-discrimination law, and the Equal Employment Opportunity Commission may be able to help you. I'm not sure what you mean by "sexual abuse" cases, but your best bet is likely state criminal-law court reports.

Atlanta, Ga.: I read in a news article that the Supreme Court voted 5-4 not to grant cert on an Alabama electric chair case. I thought four votes granted cert?

Joan Biskupic: This was such an interesting case, and since I'm running out of time, I'm going to have our producer put up a cite to the story I did about it two weeks ago. The bottom line is that for the first time the Supreme Court suggested that it takes FIVE VOTES, not FOUR to hear a prisoner's appeal for what's known as a writ of habeas corpus.... That's how this electric chair case was presented. The court's order was very cryptic and very puzzling to all outsiders.

washingtonpost.com: Story: Death Row Inmates Caught in Procedural Trap (Feb. 23)

You can find the case, Tarver v. Alabama, on the Feb. 22 Orders list. The case was denied cert under petition 99-8043 and denied habeas corpus under 99-8044.

Jacksonville, Fla.: What is the quickest means by which one can obtain a copy of the weekly Orders List? I know it's posted on the LLI Web site on Monday mornings, but many times I hear news reports late Friday afternoons when cert. has been granted. Is the press privy to some information that is not accessible via the web? Thanks!

washingtonpost.com: It's not the quickest, but there's an Orders page in our Supreme Court Special Report.

Joan Biskupic: No, when he hear that a case was granted on a Friday afternoon, it's because it was. Sometimes (particularly in the beginning of the term) the justices break their usual Monday-orders pattern and announce some new cases on Friday afternoon. THey do it if they are asking the lawyers to expedite briefing in the case; the early order presumably adds three more days to a lawyer's preparation schedule. ... Or maybe it just wrecks the weekend.

washingtonpost.com: New news from this morning: the Virginia Supreme Court reversed an award to Michelle Finn, who had been awarded reimbursement of legal costs in her case against the state to get her husband removed from life support. Would a case like this get appealed to the Supreme Court? Would it be likely to be granted cert.?

Joan Biskupic: I just heard that, too. But what I heard is sketchy and I'm not familiar with any federal issue in this tragic dispute ... We'll bring everyone up-to-date next week.

In the meantime, thanks to all who joined in. ... We have some special sessions coming up this month on big church-state cases and on the Supreme Court press corps. Watch for those.

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