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Holding Court with Joan Biskupic

Holding Court
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Friday, March 24, 2000; 11 a.m. EST

It's been a big week for the Supreme Court, with decisions both on the FDA and tobacco and student fees in university systems. And the the ever-present debate over the Second Amendment continues to make headlines. When the justices issue their opinions and decide which laws serve America and its citizens, the Supreme Court press corps translates those rulings into understandable language that makes clear the process and the principles to readers. This week, "Holding Court" is based in the press room at the court, and Post Supreme Court reporter Joan Biskupic was joined by one of her fellow scribes, Associated Press reporter Richard Carelli.

Carelli has covered the court for the AP since 1976, making him one of the most senior reporters on the beat, and holds a journalism degree from Ohio University and a law degree from George Washington University. Carelli used to describe Justice Antonin Scalia's on-the-bench style "part Oliver Wendell Holmes, part Henny Youngman." But these days, the analysis is "part Holmes, part David Letterman."

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 and Richard Carelli: Welcome all. We're here at the Court's pressroom, on the ground floor of the marble building. It's a rectangular room, packed tightly with reporters' cubicles. And it was hopping last week. So send in your questions and Dick and I will have a crack at 'em.

washingtonpost.com: Welcome to cyberspace, Dick! Tell us about things at the court this week. On days when decisions are announced, how different is your job from those of the rest of your brethren in the press room? Working for the AP, you need to provide analysis on a rolling deadline – which Joan increasingly does with our PM Extra edition. What's your reporting process, from announcements through last take of your story?

Richard Carelli: The pace of my job places a huge premium on prior preparation. It's easy getting geared up for the court's initial action in a case – that's just a thumbs up or thumbs down on granting review. Things get stickier on decision days, when the court can go in various directions – some of which are pretty hard to predict. One of my bosses has told me I get paid for doing in minutes what lawyers get paid (a whole lot more) for doing in months. It's fun, as long as you don't let the pressure paralyze you.

Joan Biskupic: Even though the Post and some other papers have moved to earlier Web editions, Dick still has the greater pressure of getting a story onto the wires in a few minutes. I have a couple of hours, for our 1 p.m. edition.

Wayland, Mass.: If you could spend an evening with one of the Supreme Court justices for an off-the-record conversation about any matter you desired, who would it be?

Joan Biskupic and Richard Carelli: We love this question. Joan picks the Chief, he's been around longer, seen more... and tends to speak his mind. Dick picks Clarence Thomas, because it would be such a rare opportunity to hear from a guy whose voice is not often heard in the courtroom.

Laurel, Md.: In a chat Wednesday, [Handgun Control, Inc. spokesman] Joe Sudbay stated:

"The Supreme Court has never interpreted the Second Amendment to mean that there is an individual right to keep and bear arms," and "No federal gun-control laws have ever been overturned on the basis of the Second Amendment."

What has the Supreme Court ever ruled about the Second Amendment, and any idea what the current court's attitude might be?

Joan Biskupic and Richard Carelli: The last time the court squarely looked at the Second Amendment was in 1939 – and the justices said it didn't guarantee an individual right to bear arms. Two of the justices, Thomas and Scalia, have suggested they would like to take a new look at the scope of the right.

Chicago, Ill.: The major news media organizations almost never report on the court's denials of particular petitions for writ of certiorari. The Associated Press is the only exception that I know of, but even it mentions very few and provides only a sentence or two when it does. It seems to me that this just exacerbates the effect of the court's phobic secrecy about its decision-making process by ceding to the court virtually complete control over press coverage of the issues brought before it. With all the "down time" that the Supreme Court reporters have during the lengthy and frequent breaks the court now takes each term, why isnít there more coverage of this aspect of the court's role? Why does the news media assume a lack of interest in this by the public, given the increasingly important impact of it now that the court has so significantly decreased the number of cases it hears?

Richard Carelli: A typical "orders" day at the court can generate up to 30 or 40 stories by my partner, Laurie Asseo, and me. Many of those stories never reach our national wire but are relayed to AP bureaus around the country, where editors place them on various state news wires. In past terms, I've clocked our denial-of-review stories at about 300 from October to June. I guess that's not very many when you consider about 7,000 are being denied.

Joan Biskupic and Richard Carelli: Bear with us folks. Remember we're in the pressroom... and other reporters are over here kibbitzing...

Newton, Mass.: Justice Sandra Day O'Connor is often portrayed by court observers as an indecisive justice who frequently writes nebulous majority opinions and dissents that reflect her overriding principle, "the right to change her mind." Do you share this view of Justice O'Connor and her written majority opinions and dissents on the court?

Richard Carelli: O'Connor agonizes over her votes and opinions more than most. Anthony Kennedy falls into that category also. I sort of like that in a judge, who is supposed to approach every case with an open mind.

Joan Biskupic: I agree. But it's often easier to report an opinion written by Scalia or Rehnquist, than O'Connor or Kennedy, because the first two are so certain, so without caveat.

Washington, D.C.: Are all of your colleagues jealous that you're doing this groovy online thing? And do you have an idea when the court will get a Web site of its own?

Joan Biskupic: Yes, they're hanging around. Reuters is saying, when will my turn come. The LA Daily Journal is signing onto, sending in his own questions. We're sure to hear some criticism soon.

Richard Carelli About the court's own Web site, Justice Thomas recently told a House subcommittee, that one's coming soon. My hunch is that it won't be as much fun as this one.

Joan Biskupic: And that's why we asked Dick on.

Englewood, Colo.: I know it's tough to speculate on how the court is likely to rule, but re. laws in numerous states that deny recognition of same-sex marriages, aren't they clearly in violation of Article Four's "full faith and credit" clause? If some state legalizes such marriages, how can these state laws possibly stand up?

Joan Biskupic and Richard Carelli: The court in this area and others relies so heavily on legal traditions, so it likely would be an uphill climb to get the justices to say other states must follow Vermont's lead.

Joan Biskupic and Richard Carelli: Our colleagues say they're trying to get on line to complain to us, but they can't get through. Yes, readers, keep all those substantive questions coming...

washingtonpost.com: We love complaints! Bring 'em on!

Fairfax, Va.: If it is, as so many believe, a constitutional "right" to own a gun (either a rifle or handgun) then how can this "right" be lost by an individual who has been convicted of a felony?

In this state it is illegal for a convicted felon (even one who has completed all probation and is now a citizen in good standing) to purchase or own firearms. Doesn't this seem to imply that the "right" to own firearms is actually a privilege and not a "right" at all?

Are other "rights," as outlined in the Bill of Rights, subject to life-long loss by a felon once they have satisfied their probationary requirements?

Joan Biskupic and Richard Carelli: That's a tough question. Clearly, there are some statutory rights that can be forever lost. You make an interesting point on constitutional rights, but we'd need more time to research that one.

Arlington, Va.: I must say you guys do a great job in your "instant reporting" of Supreme Court opinions. I usually read new opinions myself online around 10:30 a.m., and then I still read your analysis afterward to find out what the decision "really means" to the country. Bravo!

Joan Biskupic and Richard Carelli: Well, thank you, Arlington.

Arlington, Va.: Can you explain why the decision in the Wisconsin student fee case was not unanimous? What were the concurring justices worried about?

Joan Biskupic and Richard Carelli: The court unanimously ruled that the University of Wisconsin's student fee scheme did not violate anyone's free speech rights. But where three justices (Souter, Stevens, Breyer) split from the rest was on the need for such a school to be "viewpoint neutral" – that schools have to allocate the money without favoring one campus group over another. .. Those concurring justices were worried that would set a precedent for other programs and threaten academic freedom.

washingtonpost.com: We talked a lot about guns this week with both advocacy group spokespeople and members of Congress. What's your sense of when and how the court will address the Second Amendment issue? Or will the Rehnquist court forever shy away from taking on the fundamental question of whether the Second Amendment upon bestows individuals the right to bear arms? How does the Emerson case in the 5th Circuit affect the debate?

Joan Biskupic and Richard Carelli: The Rehnquist Court has indeed shied from this in the past (Dick smartly notes that the justices turned down two cases on the Second Amendment just last October.).. The Emerson case is pending 5th Circuit (that's the one in which a district judge ruled there is an individual right to bear arms), and an eventual appeals court ruling will eventually come up here. Dick's prediction: the 5th Circuit will reverse the trial judge and the Supremes will deny review.

Philadelphia, Pa.: I was very disappointed by the decision in FDA v. B&W Tobacco Corp. The FDA presented substantial evidence, in the form of very incriminating secret company documents, that tobacco companies intend for the nicotine in cigarettes to affect bodily functions (sedative, stimulant, and appetite suppressant) because of its addictive properties, and the Food, Drug & Cosmetic Act provides for FDA jurisdiction for products "intended to affect the structure or any function of the body." Further, deference to agency interpretations of the statutes they administer is a staple of agency law under Chevron, and the FDA concluded, on a substantial record, that cigarettes were within scope of the FDCA.

Do you think it was inappropriate that the two cigarette smokers on the court (Scalia and Rehnquist), who decided against FDA jurisdiction, did not recuse themselves from deciding this case? One of the key points in the briefing and in the majority's decision was that FDA would have to ban cigarettes if it determined that nicotine is a drug, and cigarettes are drug delivery devices because it's undisputed that cigarettes cannot be used safely. That means Scalia and Rehnquist were deciding a case in which they had an obvious conflict: if they upheld FDA jurisdiction, cigarettes would have to be banned under their view of the FDCA. If the standard for disqualification is whether a judge's impartiality might reasonably be questioned, 28 U.S.C. ß 455, shouldn't these two justice have been disqualified in light of their smoking habit – a habit that every major health organization in America has concluded is an addiction?

washingtonpost.com: Full text: Food and Drug Administration v. Brown & Williamson Tobacco Corp. (2000) (FindLaw)

Richard Carelli: Disqualify the smokers? What would you have the court do on grandparents' rights – decided the case with only three justices. Seriously, I don't see the conflict.

Joan Biskupic: Neither do I.... On the question of whether the court should have deferred to the agency's interpretation of the law, O'Connor emphasized what a unique case this was. She noted that for several decades the FDA itself said it didn't have authority over tobacco and that Congress since 1965 had passed numerous laws specifying rules for tobacco and suggesting it (not the FDA) was putting in place an overall scheme.

Newton, Mass.: Why has the Supreme Court managed to prevent its decisions from being leaked prior to their being officially released? If a source in the Supreme Court provided you with advance notice or information about a pending decision, would you print it? What would likely be the repercussions for a journalist who printed a story detailing the results of a pending court case?

Joan Biskupic and Richard Carelli: That's what we want to know: why hasn't anyone managed to leak the rulings to us???

But what would we do if we got an early opinion??

Richard Carelli: I'd be tempted to run a story but don't think I would. First reason: What public good am I doing with, say a 24-hour scoop? Second reason: I think it would be really tough to protect my source. Some of you might not realize but the most important Supreme Court decisions go through a process that can produce as many as 15 drafts. I'd like a source that gives me access to all 15 drafts, complete with vote changes and shifting alliances. And I'll take a term's worth of those."

Joan Biskupic: I would take all of the above, and I would protect the source, but I would be more inclined to throw caution to the wind and run the story early.

Painesville, Ohio: When the Supreme Court makes a decision, I would like know how each Justice voted. I understand 9 to 0, My paper does not do this.

Joan Biskupic and Richard Carelli: Most of us do try to give the exact line-up in every decision. Not sure what paper you're reading there.

Fredericksburg, Va.: I'm sorry I missed last week's discussion on possible nominees to the Supreme Court by the two main presidential candidates; however, I was wondering if you would not mind answering one more question. What is the probability of Chief Judge Richard A. Posner being nominated? I understand he has a long history of voting conservatively. Would his out-of-court mediation of the Microsoft trial affect anyone's decision?

Richard Carelli: Posner's chances are slim. His track record is long-enough and controversial enough to attract criticism from liberals and conservatives alike. That's a pity, because he's a really interesting judge.

Joan Biskupic: His chances are non-existent. (I agree he's one of the most interesting on the bench, tho.) For you readers not familiar with Judge Posner, he recently wrote a fiery dissent to the 7th Circuit's upholding a ban on so-called partial birth abortions, he wrote a book that criticizes Clinton in the Monica scandal, and he is now working as a special mediator in the Microsoft anti-trust case.

washingtonpost.com: FYI, here's the transcript of last week's discussion. You can always find transcripts in our "Holding Court" archive.

Germantown, Md.: In response to the question on O'Connor, are there any justices exactly the opposite – giving a quick decision or inflecting their own personal bias in a case?

Richard Carelli: Chief Justice Rehnquist has told folks he knows that he does not find his job particularly stressful. He calls them like he sees them (and his constitutional views) haven't really changed much since he was in his 20s) and let's the chips fall where they may.

Arlington, Va.: Article III of the Constitution is short and vague when dealing with the third branch of government. Have the procedures used in the Court evolved from tradition or are there procedures written down somewhere that governs it? If yes to the latter part of the question, who wrote the procedures, Congress or the court?

Thank you.

Joan Biskupic and Richard Carelli: That's a fascinating question. Even those of us who are paid to watch the court from close range don't know much about all the traditions. For example, how many votes are needed before the court can ask the solicitor general for the government's views in a particular case. We are uncertain because it's not written down anywhere. .. This issue came up that recent Alabama electric chair case. The justices for the first time suggested that it takes five votes, not four, to hear an original habeas corpus petition. We talked about this a few weeks ago.

Lindsborg, Kan.: Another question for the prognosticators: Any guess on how the court will go on the nude dancing case form Pennsylvania? The precedent (Barnes) was such a fragmented decision (as the Pennsylvania Supreme Court stated so clearly) – will this court be able to "clear-up" Barnes? Also, what about the Dale case – homosexual Boy Scout leader – New Jersey case?

Thank you

washingtonpost.com: More on the nude dancing case and the Boy Scout case from our Supreme Court Special Report.

Joan Biskupic and Richard Carelli: Both of these are good questions. The oral arguments in the nude dancing case were a muddle, and there was some question about whether the justices were even going to reach the merits of Erie's ban on nude dancing... But that case has been pending for about four months now. That suggests the justices are struggling with the merits of it. ... The Boy Scouts case won't be argued until April and we'll wait until arguments before venturing a prediction.

Hartford, Conn.: With the term starting to draw to a close, is there any information that might lead you to believe that any of the present justices might retire? Or is that so terribly unlikely in an election year?

Joan Biskupic and Richard Carelli: Yep, terribly unlikely in an election year. We've got these nine until at least 2001. ... Dick adds that several of the justices have told acquaintances that it would be an irresponsible act for a healthy justice to retire in a presidential election year.

Chestnut Hill, Mass.: If you had to place a bet on whether the court would answer affirmatively or negatively to question of whether a private person has standing under Article III to litigate claims of fraud upon a government (Vermont Agency of Natural Resources v. U.S. ex rel. Jonathan Stevens, 98-1828, the qui tam case), which way do you think the court will come down?

Joan Biskupic and Richard Carelli: We'll take a pass on that one. But you won't have to wait long for an answer... we expect to see a ruling in that case within weeks.

Washington, D.C.: It seems like the court has been taking on several controversial issues this term – abortion rights, Fourth and Fifth Amendment issues, and religious freedom issues come to mind – that it seemed to shy away from for several years. Do you agree? If so, to what would you attribute the court's apparent change in willingness to tackle the tough questions? Do you think the presidential election cycle is playing a role – either by lining up tough issues to contribute to the election debate, or to issue decisions on these topics before a new president gets to pick new justices?

Joan Biskupic and Richard Carelli: This is the newsiest term Dick has lived through. (And he's really old!) He thinks it has to do with the position of the moon and not the election year. In other words, he can't explain it. He's just enjoying it. (Which makes him not so old after all.)

Boston, Mass.: I know that the prospects of television coverage of argument in the U.S Supreme Court are very poor in the near future. Why does the court oppose live audio/radio coverage of its arguments?

Joan Biskupic and Richard Carelli: They never say directly, but Dick thinks it's that they believe once they allow that, they'd have to allow video. The ol' nose-of-the-camel argument.

Boston, Mass.: Have you read Bob Woodward's "The Brethren" about the Nixon Court? What was the court's reaction to it, and have they become less open as a result?

Joan Biskupic and Richard Carelli: That book came out more than 20 years ago. Then-chief justice Burger hated it. The justices have never been a talkative crowd, and the current cast has perfected the art of keeping a low profile.

Arlington, Va.: I'm curious about the Supreme Court majorities adherence to a strict constructionist point of view even if they realize that the outcome is a perverse result. Last week's example was the lack of jurisdiction by the FDA over tobacco even though the majority recognized that cigarette smoking is bad for people. This follows in the wake of decisions that the federal government can't restrict gun use around schools.

Joan Biskupic and Richard Carelli: You make a point that Justice Breyer emphasized in his dissenting opinion. That the majority's result was "counter-intuitive" to the law and society today.

Washington, D.C.: I was interested to see that Vice President Gore criticized Rehnquist, Scalia, and Thomas by name for their votes in the FDA-tobacco case. That's a pretty rare political strategy, isn't it? I wonder why he didn't criticize O'Connor, the author of the opinion – because criticism could alienate women voters? As much as I dislike the tobacco companies, I think the decision was correct because Congress never gave the FDA authority to regulate tobacco.

Joan Biskupic and Richard Carelli: Hmmmm. Not sure why he didn't mention O'Connor, although neither of us were aware that he had singled out the others.

New York, N.Y.: Do any of the journalists who cover the court have particularly warm or antagonistic relationships with any of the justices? Have you two ever had a run-in with a justice?

Joan Biskupic and Richard Carelli: Both of us have had run-ins with the justices. .. But it's never personal, we're certain (yeah, right).

Joan Biskupic and Richard Carelli: Well, it's noon. And all of our colleagues are leaving – per the usual schedule – for the lunch room. So we're out of here. Thanks so much for joining us, all you readers. Thanks, especially, to Dick Carelli for taking the time to join in and share his expertise. We'll be back next Friday.

washingtonpost.com: Lots of great questions left that we didn't get to. But we read all of them, and we'll try to get to them in future shows. So join us again next week. Thanks.

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