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Holding Court with Joan Biskupic

Holding Court
Related Links
Video: Joan Biskupic on the Miranda case (April 19)
Court Limits Federal Reviews In Capital Cases (April 19)
High Court Limits Police Luggage Searches (April 18)
Court to Review State Rights On Term Limits, ADA Suits (April 18)

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Live Online: Holding Court
Supreme Court Special Report
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Friday, April 21, 2000; 11 a.m. EDT

Law enforcement and prisoners rights were major themes at the Supreme Court this week, as the justices heard oral arguments on cases on state prisons, capital punishment, sentencing and the blockbuster case, Miranda rights. The court also surprised some by striking a blow in favor of privacy rights, ruling that police cannot search the luggage of passengers on public transportation. The justices, in an opinion written by Chief Justice William H. Rehnquist, decided that a bus passenger whose bag was squeezed by a federal agent had been subject to an illegal search under the Fourth Amendment. Talk about this week's business at the court – including its new Web site – on "Holding 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. EDT. The transcript follows:

Joan Biskupic: Welcome. The Supreme Court, sitting at the highest end of the criminal justice system, heard a case this week that will profoundly affect what goes on at the lowest: stationhouse interrogations. We'll talk about the Miranda arguments today and anything else that comes up, as we approach the last week of oral arguments for the term. Abortion rights and the Boy Scouts' ban on homosexuals are up next week.

Folly Beach, S.C.: I'm a little unclear about the pending Miranda update case. Is it just the reading of the warning that is at issue, or is the whole concept that police can tell you nothing or anything, that's at stake?

Joan Biskupic: That's a good question. What's at stake is the basic concept that a suspect must actually be warned of his rights before being able to give them up. Miranda stood for the proposition that stationhouse interrogations are so inherently coercive that a suspect should know he has the right not to incriminate himself. The actual wording of the warnings are less at issue. THe Justice Department argues that the 1966 court wanted the familiar warnings ("You have the right to remain silent." etc.) BUT that Congress could come up with a substitute IF it was as effective in notifying someone that he doesn't have to talk to police.

Arlington, Va.: Hi Joan. Love your perkiness and innocence, so not D.C. Just wondered if you've thought through what happens to the losing side in the Elian mess if and when they seek cert. Can they and would there be a chance the Supremes wouldn't want to get involved? Thanks.

Joan Biskupic: Perkiness???? Innocence? Jeez. Not a compliment, okay? .. As to the question, I suspect the Supreme Court doesn't want to get involved in this one. Generally, the justices defer to the INS and administration on immigration matters, but I have no idea how they'd rule if they even had to take a look at the merits of the Elian relatives claim. I talked to my colleague Karen DeYoung, who's been covering this (and who is not really perky either) and she said there's still a lot to unfold before the 11th Circuit. In the meantime, she said, Reno is getting ready to remove the boy from his great-uncle's home.

Fort Valley, Va.: My question concerns police tactics BEFORE an arrest. If a suspect is questioned aggressively by police, threatened with arrest, and the suspect admits to wrongdoing, do the police have probable cause then to make an arrest?

As an example: The police make a traffic stop based on a suspicion that there are drugs in a vehicle. The driver is questioned and threatened with arrest if he does not reveal where the drugs are in the car. The driver admits that yes, there are drugs in the car. Do the police now have probable cause to search the vehicle?

Joan Biskupic: Seems they would, if they've just been told there are illegal drugs in the car.

Hong Kong (HKSAR): To what extent has the Supreme Court safeguarded the democratic rights of the individuals in the USA?

Joan Biskupic: Hello Hong Kong! That's a big question but the bottom line is that they've been upheld through interpretations of our Bill of Rights and subsequent constitutional amendments ensuring the right to speak out, to vote, to equal protection of the law. (I'm not sure whether you were trying to get at something else.)

Greenbelt, Md.: Hi –

I'd like to ask you question about the rules of covering the Supreme Court as a reporter.

Specifically, can a reporter speak to one of the justices "off the record"? Here's why I'm asking: As you know, in the Executive and Legislative branches of the government, it is commonplace for reporters to be given information "off the record" or for background purposes only by elected officials and their staff. The open and freewheeling dialogue on John McCain's campaign bus was just one of the more visible examples of the access that reporters have with congressmen.

But would be it unheard of for a reporter covering the Supreme Court to even approach a justice for information "off the record" as to the some aspect of the court's operations?

I'm just curious. The only time I've ever seen any unofficial information leak from the court was in Bob Woodward's book, "The Brethren." Maybe it's more commonplace than I imagine.


Joan Biskupic: Generally, the justices are not accessible to reporters. Some of us meet with some of them under casual circumstances, and typically any decent information is off the record. They believe their opinions speak for themselves. Sometimes justices are willing to reveal a bit of the action behind-the-scenes. But as a group, they are very skittish about press questions. Can't overstate that.

Washington, D.C.: I think a lot of people were surprised by the 11th Circuit's decision in the Elian Gonzalez case stating that "any alien," even a minor, could apply for political asylum. I read that the Justice Department could ask a Supreme Court Justice to stay that decision. Which Supreme Court Justice is assigned to the 11th Circuit?

Joan Biskupic: Justice Anthony M. Kennedy (keep those easy questions coming)... But, just so you know, Kennedy could refer the matter to the full court for a decision.

Washington, D.C.: I am writing a paper about the Dickerson case. I wasn't able to attend the argument, but I was hoping to get my hands on a transcript of the argument. I have access to Westlaw, but I haven't seen anything posted there. Any suggestions about where (and when) I should look? Thanks!

washingtonpost.com: Our Supreme Court special report includes a page where you can search opinions of the Supreme Court and federal circuit courts. The databases are powered by FindLaw.

Joan Biskupic: Also, the New York Times paid for a transcript from the commercial outfit that records the arguments. The paper ran the text on Thursday.

Concord, N.H.: I read in a local paper about a trademark case involving O.J. attempting to copyright his name.

The interesting part of the article was something about the 8th Circuit being the end of the road for copyright or patent cases.

Did the Supreme Court limit the its role in these issues or is this from Congress?

Joan Biskupic: Hmmm. I don't know about the O.J. or 8th Circuit matter. But the Supreme Court still hears patent and trademark appeals.

Hendersonville, N.C.: Where can I find information concerning the statutory formula in N.C. when a father dies and the step-mother for two years is taking everything from the only child?

Joan Biskupic: Check your local state code; should be available at the library.

washingtonpost.com: The FindLaw site also has state resources – laws and codes.

Montgomery, Ala.: Any thoughts on the grant of cert. in the ADA case this week?

Joan Biskupic: Yes, the scope of the Americans with Disabilities Act is a big issue, lots of conflict in the lower courts. The specific case the court agreed to take last week (Alabama v. Garrett) tests whether states should be protected from lawsuits brought under the law ... whether Congress, in passing the law designed to open doors and opportunities to the disabled, lifted the states' usual immunity from lawsuits by private individuals (for example a state worker who's being discriminated against because she's undergoing cancer treatment).

Baker City, Ore.: It looks as though the Supreme Court has set a new precedent for those dealing in drugs...Don't drive but ride Greyhound....

Question: Why a different set of standards concerning riding public (privately owned) transportation and squeezing by a "federal officer" vs. riding in a vehicle i.e.; car (privately owned), and being (squeezed) arrested by state authorities? Do "state authorities" have a different rule book than "federal officers" or will this case make it legal to be secure in your possessions, whether in a car or a bus?

Joan Biskupic: An alternative motto for the case (expressed by Scalia) was, "Pack your drugs in a hard-sided suitcase." The court ruled that police can't go down the aisles of a bus, squeezing the canvas luggage, feeling for drugs. The majority said passengers who put their luggage in a common area, the overhead rack, retain an expectation of privacy for their belongings. (Here, a Border Patrol agent felt a "brick" of methamphetamine.) ... But as to your question about cars or buses... it's not quite relevant here, because the legal test was built around the fact that the passenger put his suitcase in with other passengers' belongings, in some ways relinquishing possession (and maybe a privacy interest) in it. So the whole case was tied to the idea of what can police do in a "common area," rather than what can police do when they search your car.

WDC, The Last Colony: Hi, love these chats.

Do you think the court might have taken on more controversial cases this year knowing (consciously or not) that a few retirements are around the corner? Could it be some of the justices wanted to weigh in on these cases before they leave the bench next year?

Joan Biskupic: Thanks. And I actually don't know. They've taken so many big cases this term ... and are just starting on next term, so it's not clear where they're headed. The two justices most likely to retire (Stevens and Rehnquist, because of their ages), tend to rule in opposite directions... so there would be some competing interests there... I also don't think either would consider cases in the calculating terms you suggest... it would take a lot of energy.

Washington, D.C.: Hi Joan,

I heard you speak a few years ago at G'town Law, and I thought you were great. Okay, maybe not "perky and innocent" but bright and energetic, certainly!

My question is, what did you think of the 7-2 split in the case last week that the cops' squeezing a bag on an overhead rack is an unreasonable search? Were you surprised to see Scalia and Breyer on the same side, especially on an issue involving the police?

Joan Biskupic: Hey, this isn't a path I want to go down.... But on your substantive question, yes, it was a surprise to see Scalia and Breyer together. Breyer is far more liberal on individual rights' questions. BUT the one area where he may be tougher and inclined to side with the government is in the criminal law area. ... He also travels a lot. Maybe he's used to throwing his bag up in the rack and thinking, no privacy for that...

Washington, D.C.: Joan,
We were among the 25 or so folks who braved the cold, wet night in order to get public seating for Dickerson. It was well worth it! (sniffle – cough...) It was also heartening that the court admitted the normal 50 or so people, despite the high demand for "privileged" seating. My question is this: any idea which case holds the record for earliest line-up? (We were there by 7 p.m. – and were only 6th in line!)

Joan Biskupic: I'm so glad your efforts paid off. It really was a historic argument. And 7 a.m. is not the earliest. When the justices heard the case dealing with physician-assisted suicide a few years ago, people began lining up at midnight.

Olney, Md.: Two things:

First, the new Supreme Court Web site looks good on the surface, and has a lot of potential which I'm sure we all look forward to it reaching. However, with nearly everything of actual use having to be downloaded in PDF format, it is a bit of a pain. I personally don't like PDF, though I see its use when you have to have standardized formatting of output for publishing. I don't see that as a real requirement on the Web site, and I think that it is effectively limiting the availability of the information on the site by adding unnecessary steps that quite a lot of people browsing through the site will not want to bother with. I have considerable interest in the Supreme Court, and am looking for some specific cases to sit in on again, but I really don't want to bother with PDF files either. Just my opinion.

Second, I am inquiring about the income tax and border dispute of Victor Bourre (and the State of New Hampshire, whose Attorney General and Legislature are weighing in with) vs. the state of Maine (whose attorney general and legislature are also stepping in directly on this issue). The question is whether or not the Portsmouth Naval Shipyard is in fact in New Hampshire, which has no general state income tax, or Maine, who claims it and taxes people who work there even if they live in New Hampshire. Does a case like this even visit the lower courts, or since it's a state vs. state boundary dispute does it get bumped directly to the Supreme Court? When might we expect to see it in the Supreme Court, or what level of the court system might it be at now?


washingtonpost.com: Your thoughts on the court's new Web site, Joan?

Joan Biskupic: Yes, disputes between the states are heard directly by the Supreme Court (which hires a "special master" to take evidence in the case) But, unfortunately, I don't know what's going on with this particular Maine/N.H. dispute. Thanks for the comments on the Web site, by the way. The producer of this program, Lisa, does a terrific job on the site. (And she defines "perky"!)

washingtonpost.com: OK – me, perky? "Manic" maybe, perky, no. But thank you.
— Lisa.

BTW, you can look at the docket, which is organized both chronologically and by topic, on our Supreme Court resources page.

Harrisburg, Pa.: Having been involved as an amicus curiae in the Kimel case (regarding the Age Discrimination in Employment Act and the 11th Amendment) and having a continuing interest in the court's treatment of federalism matters (and the 11th Amendment), I wonder if you'd venture an opinion about the likely outcome of the Garrett case in which the court just granted certiorari to consider whether Congress had the power to abrogate the Eleventh Amendment in the Americans With Disabilities Act. I think most of us think the ADA is indistinguishable in this regard from the ADEA, but I wonder if you see any of the members of the Kimel majority as potential defectors when it is the ADA at issue.

Joan Biskupic: Good question. I think a lot of people on both sides of this issue suspect that the court – given its consistent record on federalism issues – might be inclined to rule that the ADA, like the age-discrimination law, did not lift states' immunity from lawsuit. BUT, disabilities' rights advocates also believe (hope, with some good evidence) that Congress's record in passing the 1990 ADA was much clearer on the immunity question. They think the legislative history demonstrates that in this big civil rights statute, lawmakers indeed wanted states covered.

San Francisco, Calif.: In previous discussions you have described the reporters who have press passes for the arguments. From what I recall there is stiff competition for those bench seats and most of the reporters enjoy very senior status at their newspapers and magazines. Are there currently any dotcoms that send reporters to cover the arguments, besides the reporter from Slate?

Joan Biskupic: Yes, on some occasions. The public information officers have mentioned that they're starting to see more Internet reporters there, seeking passes. But I think they're mostly coming from the business and trade outlets.

Freehold, N.J.: Do you think that the justices will look more at the Dale vs. BSA case as a violation of discrimination based on a state law (which includes sexual orientation), or as a violation of the Freedom of Speech/Association First Amendment rights? And do you think that a decision upholding the New Jersey Supreme Court ruling will force the BSA to change its membership policies nationally, or just in New Jersey?

Joan Biskupic: The issues are linked. The New Jersey Supreme Court ruled that the Scouts' policy against gays violated state anti-discrimination law. It said that because the Boy Scouts is such an open and large organization, it can't claim a constitutional freedom of association to keep gay people from joining. The actual legal question goes to the Scouts' freedom of association. The group says it should be able "to create ... its own moral codes" for members. If the Scouts lose, it will at first only affect the New Jersey membership, because that's what the state law covers. But, such a ruling would probably put pressure on the organization nationwide, depending on the breadth of state laws against discrimination based on sexual orientation.

Alexandria, Va.: Hello,
I understand the Boy Scout case is scheduled to be argued next week. Can you briefly say what's at stake here, and is a decision likely to have an impact beyond just New Jersey? Thanks.

Joan Biskupic: See the above answer and look for coverage in Thursday's paper ... the arguments are Wednesday at 10 a.m.

Chicago, Ill.: I would like to read your opinion of the court's questioning during the Salomon-Harrist Trust case. Dry stuff, liability of non-fiduciary party-in-interest, etc.


Joan Biskupic: I wasn't able to attend that argument last Monday, because of the court ruling in the police search case and other more general-interest news. You might want to check the web for business publication reports.

Joan Biskupic: And on that note, on a dry, fiduciary-duty case (decidedly non-"perky"), we're signing off. Thanks to all for joining us. Watch for reports on the big cases next week.

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