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Holding Court with Joan Biskupic

Holding Court
Related Links
MSNBC Video: Joan Biskupic on school prayer case (March 28)

Supreme Court Curbs Use of Tips in Searches (March 29)
Challenge to Welfare Reform Act Rejected (March 28)
Texas Prayer Case Seen as Kickoff to Bigger Issue for Court (March 27)

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Friday, March 31, 2000; 11 a.m. EST

The First Amendment and civil rights played a major role at the Supreme Court this week, as the justices issued a ruling upholding cities' rights to regulate nude dancing, decided to curb police power to search suspects based on anonymous tips and heard oral arguments in a case involving school – or in this case, football game – prayer. "Holding Court" will look at this week's developments, as well as recent decisions and the flaps over guns and flag burning.

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. We had a lot of action at the court this week – and this is how it's going to be through the end of June, when the justices' wrap up one of their biggest terms in years. So send in your questions about the new rulings, or sound off about anything else related to the court. Are there any big issues you'd like to see the justices take on?

D.C.: Joan, from reports I've heard on the Texas prayer case, the school outright sponsored prayers before games until some students and parents objected.

Then the school board instituted this so-called "student-initiated" program. But since it was begun only in response to objections, isn't really school-sponsored prayer by proxy?

Did the parents' lawyer bring up this point during arguments, and do you believe this is a valid reason to consider the situation as really school-sponsored prayer?

Joan Biskupic: Yes, lawyer Anthony Griffin did tell the justices that the school district had been promoting Christian views in a variety of ways, in the classrooms, at sporting events. But the record before the justices is mixed on just what was going on. The lawyer for the other side, Jay Sekulow, contended these were isolated instances. I don't think the district had a written policy before 1995, but at that time it did adopt a procedure that allowed for religious invocations. The school district contends that because it allows students to vote on whether to have some message, religious or not, at games, it's a "neutral" policy. Some of the justices were skeptical of that argument, tho.

washingtonpost.com: As we get started, shameless plug: The Post's Herblock did a great cartoon today about this week's nude dancing decision.

Fredericksburg, Va.: In the Board of Regents of UW v. Southworth, it was mentioned that a three-justice concurring opinion protested the requirement that student activity fees be disbursed with viewpoint neutrality. What were these three justices suggesting the requirement should be instead?

washingtonpost.com: Full text: Board of Regents of the University of Wisconsin System v. Southworth et al. (March 22) (FindLaw)

Joan Biskupic: You're referring to the concurrence by Souter, Stevens and Breyer. They weren't proposing an alternative standard, rather they said the majority should have stopped with its rejection of Southworth's free speech claim and the ruling that he had to pay the activity fees even for groups he opposed. The three justices suggested the requirement of viewpoint neutrality might hurt academic freedom in other contexts in the future.

Linda in East St. Louis, Ill.: Is there anything pending before the Supreme Court now that will let us know if states can be sued by employees for various types of employment discrimination and ADA? Did all of the key cases go away, or are there any pending cases that I've lost track of? If there aren't any pending cases what does that mean? Does it just vary from Circuit to Circuit until another case makes its way up?

Joan Biskupic: The court had agreed to review whether states could be sued under the Americans with Disabilities Act for discrimination in employment and services. But those cases indeed were removed from the calendar, because the parties settled. But the issue is not gone. A case from Alabama is pending, and may be granted for next term. There are plenty others in the pipeline, but we're not likely to have a resolution of states' responsibilities under the historic ADA until after 2000.

Sydney, Australia: I'm an Australian lawyer who is a keen follower of the U.S. Supreme Court. I really look forward to reading "Holding Court" each week!

At the risk of betraying my ignorance, I was wondering whether the Texas prayer case argued this week might give the court the opportunity to fundamentally re-examine its Establishment Clause jurisprudence. As far as I can tell, there seems to be no clear consensus among the justices as to the appropriate test for determining when state action becomes impermissible entangled with religion. Did any of the parties to the case argue for such a fundamental re-examination?

Joan Biskupic: Hello Sydney! Glad you're with us. The justices are all over the map with their standards for determining when government has violated the constitutional separation of church and state. But, no, neither party asked the justices for a fundamental re-examination or overhaul of their jurisprudence. Each side claimed that under whatever standard is used (student coercion, a neutrality standard, the so-called Lemon test, etc.), they each, respectively, would win. I don't think there are five justices on the court for a single standard. Though I do think they'll be able to muster five clean votes to rule on whether students should be able to pray before kick-off. ... What time is it in Sydney, by the way?

Washington, D.C.: It seems that the courts have been pretty consistent that the Second Amendment does not guarantee an individual right to bear arms, yet the notion that it does persists. Why do you think the NRA, which for a long time was headquartered in Washington, D.C., which enjoys a handgun ban, does not challenge gun control laws on Second Amendment grounds?

Joan Biskupic: You're right that the NRA hadn't been pushing the Second Amendment argument in the courts (in public relations statements, it had, tho) But that's changing. There's a case now in the Fifth Circuit (involving a man named Timothy Emerson), and the NRA and its allies are hoping it could lead to a ruling that the Second Amendment protects an individual right to own guns. A trial court ruled just that, and that decision is now on appeal.

Somewhere, USA: On NBC's "The West Wing" on Wednesday, the president was interviewing a prospective nominee for the Supreme Court. The candidate was asked whether he thought it was constitutional for presidential staff to be required to take a drug test. The candidate said that he thought that it was a violation of Fourth Amendment rights.

What's the prevailing rule on this? I was under the impression that drug tests can be required for safety-sensitive positions, but are there any Fourth Amendment rights for employees who do not wish to take a drug test?

washingtonpost.com: FYI, as producer of this show and a huge fan of "The West Wing," I can assure you we will always consider these questions. ;-) — Lisa.

Joan Biskupic: Gee, I'm going to have to watch this show. People are always asking me about plots that relate to court appointments or death row inmate appeals. On this question, you're right that the court has allowed drug tests (without what's known as "reasonable suspicion," anything that would give the agency grounds to believe a person was using drugs) for safety reasons. The court has allowed them for public transportation workers and student athletes, for example. But a few years ago, it struck down a state policy of requiring urinalysis testing for state political candidates. ... There's never been a case regarding presidential or other executive branch staff. So did the candidate on the show get confirmed?

washingtonpost.com: Also FYI, re: "The West Wing" – the nominee was dropped when it was discovered he had written an unsigned note 25 years earlier that said there was no implied right to privacy in the Constitution. Implicit in the scenario is that they're talking about abortion rights, though they actually discussed privacy and the Internet. The back-up nominee is a Hispanic Circuit Court judge.

Washington, D.C.: Joan,

I heard just a partial snippet of the news this morning which I found very confusing. I may get this wrong, but it was something about how Janet Reno was going to deny D.C. voting rights so that the issue would have to be brought before the Supreme Court and that this might in fact be a good thing for the District? Can you explain this in more detail? Thanks!

Joan Biskupic: I didn't hear that report. Anyone know about this?

washingtonpost.com: FYI, re: the D.C. voting rights issue: Justice Asked To Help in Voting Case (AP, March 30)

Raleigh, N.C.: Not exactly a Supreme Court question, but regarding the Smith & Wesson agreement about gun safety locks. Of course the threat of prolonged litigation spurred the settlement, particularly since the gun industry doesn't have as much money as the tobacco industry. But do you think that the current climate, in which juries have been favoring people over the tobacco industry and awarding huge damages, that similar awards would result from gun lawsuits? Are gun makers looking at the writing on the wall?

Joan Biskupic: Interesting question. I did a story about jury activism last year, and I talked to lots of lawyers and jurors on tobacco and gun cases. And I do think manufacturers are feeling a much bigger threat. You may remember that about a year ago, a Brooklyn jury held gun makers liable for shooting injuries – the first such damages award based on an illegal use of the companies' product. Folks connected to that case said that there was plenty of anti-gun sentiment in the jury room.

washingtonpost.com: Joan, one of the things that President Clinton said in his press conference Wednesday that hasn't been widely commented on was that his agenda included FDA regulation of tobacco. Can you think of any proposal that he's talking about now or any that could be passed and kept, given the court's recent ruling?

Joan Biskupic: The only way to get FDA regulation of tobacco is for Congress to make it the law. The Supreme Court ruled that right now, the way federal statutes are written, the agency lacks the authority. (But the court, which talked about the serious health dangers of smoking, left the door wide open for Congress to change the law.) What Clinton was likely talking are proposals that would explicitly give the FDA power to regulate the way cigarettes are sold and marketed. You may remember that within hours of the ruling earlier this month, Democrats announced plans to introduce legislation for broader FDA authority, and both Clinton and Gore endorsed the move.

Washington, D.C.: Was anyone surprised by the nude dancing ruling? Seems to go right along with the Rehnquist court's defense of states' rights and opposition to too much federal rule.

Joan Biskupic: I don't think the ruling surprised any, but largely because of the court's earlier 1991 decision that had allowed a ban on nude dancing in an Indiana case. What was different in this one was the clearer reasoning... that cities can require dancers to wear G-strings, based on grounds that they are trying to prevent the harmful "secondary effects" of nudie businesses, such as higher crime and lower property taxes.

Boston, Mass.: How do you account for Justice Souter's "change of opinion" this week concerning the constitutional protection afforded nude dancing and do you believe his nuanced, more First Amendment-friendly view of the issue will influence state courts and lower federal courts more than Justice O'Connor's majority opinion in Erie v. Pap's Bar?

Joan Biskupic: I'm glad you asked, because I hardly had space to mention Souter's change of heart in the print version of my story this week. When the court decided the 1991 case, he was in his first term. He may not have had the opportunity to fully consider the First Amendment implications of the decision. This time around, he demanded a much higher standard for evidence from a city claiming that it needed to ban nude dancing because of its harmful "secondary effects." (And he said that in this case, Erie, Pa., didn't meet the test.) ... On your last question, Souter provided the crucial fifth vote for the so-called secondary effects test (joining the view of O'Connor, Rehnquist, Kennedy, Breyer), but two other justices (Scalia and Thomas) used a standard that was much more deferential to cities .... so it's anyone's guess at this point how stringently lower courts will apply the court's standard. Most of the people I talked to thought that it would be overall easier for cities to pass laws regulating nude entertainment.

Lexington, Ky.: Bonjour Joan,
I've just recently been exposed to your column and adore your political insight to the Supreme Court. Thank you. I'm a Guide (Rev.) in a little pagan church in Lexington (the Path of the Personal Divine Ministry). Kentucky is undergoing a curious "reformation." Among other things we've passed a Defense of Marriage Act; a churches have the right to discriminate against certain renters bill; and are awaiting Gov. Patton's signature, pass, or veto of the Ten Commandments bill. The willful ignorance and worse, the revisionist history of our legislatures concerning the principles upon which this country was founded is a very scary thing.

Like Sen. Ernesto Scorsone I believe the Ten Commandments bill to be flagrantly unconstitutional. But then, I'd have thought such a bill to be unpassable too.

What are the chances of the supreme courts (state and national)- of not striking the bill down as unconstitutional?

Joan Biskupic: I don't think the Supreme Court would uphold such a modern public display of the Ten Commandments.

Weston, Mass.: If I wanted to write a letter to a Supreme Court justice about his or her taste in art or antiques, which one would be most likely to send me a personal response?

Joan Biskupic: Curious question. Try them all and see what happens.

Newton, Mass.: Will the court be issuing decisions for the period between now and when it resumes oral argument schedule in mid-April?

Joan Biskupic: Just once. Next Monday. Then they're in recess for two weeks.

Tulsa, Okla. : Will any more judicial nominees get confirmed before November? Do you think they'll get some of the less controversial Article III judges before the election? Is there a certain date where you think it will all be over until November?

Joan Biskupic: Yes, I'm certain a few of the non-controversial nominees will get through, particularly for the trial courts, because these folks typically have personal Senate backers who will ensure the appointment is approved before the change of administration.

Portland, Ore.: The issue of the Second Amendment in the gun control debate is irrelevant. Aside from the fact that the syntactical structure of the amendment renders its meaning at best ambiguous, the fact is we are no longer the agrarian society we were 200 years ago.

Where is the logic in treating gun ownership and use with less societal concern (laws) than we treat automobile ownership and use? Isn't it true that while free speech is "protected" by the Constitution, it is not an absolute (unrestricted) right? Why is it, then, that we allow the gun lobby to treat gun "rights" as if they were absolute rights?

Joan Biskupic: Actually, I don't think even the gun lobby believes any right to own a firearm is "absolute." ... But your free-speech comparison is on-point. While the First Amendment guarantees freedom of speech and expression, we still can't engage in "fighting words" or yell fire in a crowded theater, for example. Even if the Supreme Court were ever to rule that the Second Amendment protects an individual right to gun ownership (which I don't believe will happen anytime soon), government would be able to counter that "right" if it had sufficient public safety reasons.

Arlington, Va.: Any ideas if the court will take the question on voting rights in Congress for residents of D.C.?

Joan Biskupic: No, no predictions at this point. Also, regarding the earlier writer's comments about Janet Reno's statements about D.C. voting rights, my producer just told me she was much more equivocal, not ready to commit to anything at the high court. We'll put up some news stories on this.

Washington, D.C.: I enjoy your chat a lot. I would like to see the Dickerson argument in a couple of weeks. As far as going to an argument, do you have any suggestions on when I should get on line to be sure I can get in? Thanks.

Joan Biskupic: This case will test the legendary Miranda v. Arizona ruling. Good luck trying to get in; there's certain to be a full house. But even for big cases, court officials try to reserve at least 50 seats for the public. If you really want to see it, show up a couple of hours before the 10 a.m. opening. Bring breakfast.

Arlington, Va.: I noticed that Pentagon spokesman Kenneth Bacon had asked that Judge Royce Lamberth recuse himself in a suit by Linda Tripp because he had clearly displayed prejudice. Lamberth is the one who just stated that Clinton violated the Privacy Act in the case of Katherine Willey and has been requested as the overseeing judge in several cases filed by Judicial Watch. Ignoring the legal issues, how often does a federal judge recuse himself when attacked in this way?

Joan Biskupic: Judges rarely recuse themselves, even when faced with such criticism as Bacon's.

Joan Biskupic: Sorry to all you others who are protesting Judge Lamberth's actions today or had questions on other topics .... But we're out of time. Thanks to all who participated. Watch Monday for another set of rulings from the justices and also take a look at the Federal Page, where I talk about how space is a Supreme Court issue and the difficulty (for everyone) of getting into arguments.

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