Holding Court with Joan Biskupic
Friday, April 28, 2000; 11 a.m. EDT
This week, the Supreme Court takes up some of the most controversial questions of the term, from so-called "partial birth" abortion to gay Boy Scout leaders. "Holding Court" takes a look at the oral arguments and the issues the justices will consider.
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. There was such a contrast in the two big arguments this week. The justices were low-key, eerily subdued in the abortion case. But the Boy Scout dispute was extraordinarily fast-paced. Let's take your questions about those cases and any other court business.
D.C.: What do you think the implications for the First Amendment right of free association would be if the court ruled against the gay Boy Scout in the upcoming review of the N.J. case?
How about if the court ruled in favor of him? Would that be comparable to the ruling that certain clubs and organizations had to admit women, Jews, etc.? Or would that not apply because sexual orientation is not a "suspect class"? Could this case make it a suspect class? Am I asking enough questions for you?!
Joan Biskupic: Those are good questions, though. And clearly the justices were trying to figure out just those kinds of "free association" consequences. But I think we have a unique situation here, in many ways. The Scouts are a distinct civic organization, serving millions of young boys. They say they don't want homosexual scoutmasters, but there's a big question about whether that aversion is part of it's formal message, mission.
As to the religious groups you mention, it's unlikely that they would be considered "public accommodations" and even affected by the kinds of anti-discrimination laws involved here.
Wayland, Mass.: Joan, Can you give us any sense of whether the court's is behind or ahead of previous year's pace in producing decisions this spring? There seem to be quite a number of cases argued in the fall and early winter that have yet to be decided by the court. If they do have a heavy backload of cases to wade through over the next two months, will it affect the quality of the opinions and dissents written?
Joan Biskupic: Remember the Playboy case? That involves regulations against signal "bleed" of dirty programs into homes that don't subscribe to the Playboy channel. That case was heard in November and is yet to be decided. Same for Mitchell v. Helms, concerning whether government can funnel money to private religious schools for computers. In terms of numbers, the court is pretty much on track. But they still have some potential biggies out from the start of the term... and we know about the momentous ones they've just heard. ... So, yes, that could affect the quality of the opinions coming up. The chief tries to keep everyone on deadline, paced through the term. But as he would say, if they don't listen to him, what can he do? Fire 'em? Nope.
Newton, Mass.: Hello, Joan. Does the decision this week in Beck v. Prupis limiting the ability of private individuals to bring civil RICO (racketeering) lawsuits against corporations reveal anything about where the Court will come down this spring on the pending Supreme Court challenging the ability of private individuals to file qui tam cases in whistle blower situations (Department of Vermont National Resources case)?
Joan Biskupic: Hard to say. The Vermont case is another that was heard in November and that justices are obviously struggling with. The question is whether whistle blowers can sue for fraud on behalf of the federal government and get part of the settlement or fine.... The case actually started out small, confined to a fairly narrow question. But after all the briefs were in last fall, the justices added a far more consequential question to the case: whether the Constitution gives private individuals legal "standing" to sue a third party for fraud against the government.
Washington, D.C.: If the court requires the Boy Scouts or other youth organizations to allow gay men and women participate, will the Scouts be protected from future law suits when these gay persons molest children in their care?
Joan Biskupic: No.
Huntington Beach, Calif.: Why is The Post ignoring arguably the most important question before the Supreme Court at this time? Nowhere in your list of important cases is anything concerning the recent arguments about open primaries. There was one blurb the day after arguments, but that was it. Open primaries represent reasonable and necessary efforts by voters to rein in the polarizing effects to our political system of the two major parties. Who owns the elections anyway? Parties are nowhere to be found in the constitution. The founders spoke out against parties. How about it, Post?
washingtonpost.com: Story: 'Blanket' Primaries' Effect on Parties Reviewed (April 25)
You'll find it both on the front page of our Supreme Court special report and in the related links at the top of this page.
Joan Biskupic: Hey, California, you're not reading the paper very well. We had a long story on the second page of the paper about the oral arguments.... even ran a couple of pictures of the justices. And when the court rules, we'll cover that too.
Jermyn, Pa.: Would you briefly explain the difference in the opinions of the 8th Circuit Court and the federal appeals court regarding the Nebraska partial birth abortion Law and the Illinois law?
Joan Biskupic: Sure. The 8th Circuit declared the Nebraska law unconstitutionally broad... said the words "partial birth" have no fixed legal or medical meaning and ruled that, as the law was crafted, it could criminalize a common second-trimester abortion. Now, the 7th Circuit upheld similar laws from Illinois and Wisconsin. The judges in that midwestern circuit said the statutes could be enforced to apply only to a rarer second-trimester method in which part of the fetus is delivered into the birth canal before its skull is collapsed.
washingtonpost.com: FYI, earlier this week, Nebraska Lt. Gov. Dave Maurstad was online talking about the state's ban on certain kinds of late-term abortion. He sponsored the legislation in Nebraska's unicameral legislature and attended the oral argument this week.
Washington, D.C.: To the Washington, D.C. question about people molesting Boy Scouts: Grow up! That's a ridiculous assertion, and totally irrelevant to a discussion about rights.
Joan Biskupic: I'll let that comment speak for itself.
Arlington, Va.: I saw the Times' Linda Greenhouse on the street yesterday and she seemed pleasant. I wondered how the media types that cover the court get along? Is there competition among the various outlets or are things genteel? Also, when Clarence Thomas gives speeches about the cloistered life of the court, as if the life he would had, he gave up, does he regret he's there and is that why he doesn't participate in oral arguments? Thanks.
Joan Biskupic: People often ask how we all get along at the court. And the answer is (for the most part) swell! Most of the reporters have been on the beat for decades (Greenhouse, close to 25 years; the Baltimore Sun's Denniston, more than 40), so everyone knows each other well. We socialize with each other sometimes, go to ball games, theater, have parties. But we're still pretty competitive, and there's enough occasional nastiness to keep things interesting. We all get called to be on various panels or TV shows, and there are some reporters in my ranks who refuse to appear with others. But I'm not telling who.
And as for Clarence Thomas, he says he's not there to ask questions. He says he's there to write!
Mt. Rainier, Md. : For Washington D.C.'s question re: protection against suits when Boy Scouts are molested; there is currently no protection for any organization against suits from heterosexual molestation, a much more common problem. It is legal to hire people of any sexual orientation; it is not legal to put pedophiles in charge of children. Pedophilia and homosexuality are two DIFFERENT sexual orientations. Most pedophiles are hetero.
Joan Biskupic: I'll put up this response to the earlier comments.... but let's try to keep this all civil.
Venlo, The Netherlands: In almost every orders list, it is ordered that several people are disbarred from the court. Why? Did they misbehave (in lower courts)?
washingtonpost.com: FYI, you can find orders lists on our resources pages in our Supreme Court special report.
Joan Biskupic: Hello Netherlands! Yes, usually the high court is simply following the lead from state supreme courts. A lawyer has been disbarred, and the justices want him or her out of their ranks, too.
Washington, D.C.: If I'm not mistaken, Justice Stevens turned 80 this week. Isn't he becoming one of the oldest justices ever?
Joan Biskupic: Well, Happy Birthday John Paul Stevens. Thank you for even mentioning it, reader. He was born in Chicago on April 20, 1920... so he is indeed 80. He is the oldest justice on the bench now. But he is far from the oldest justice ever. Blackmun and Brennan were in their late 80s when they resigned. ... While Justice Stevens shows no signs of slowing down (we should all be so lucky), he is likely to be one of the next few to retire.
washingtonpost.com: Not to mention that Justice Stevens is a graduate of Northwestern University Law School. Go Wildcats! Lisa.
Alexandria, Va.: I'm confused about one issue in the Boy Scouts of America vs. James Dale case and hope you can clear it up for me. In today's editorial, The Post wrote concerning Mr. Dale's position, "The brief in his behalf rightly argues that the scouts can't have it both ways claim to be an open and national organization and then exclude on the basis not of behavior but of status." It seems that the Scouts have argued that the reason for kicking Mr. Dale out is that homosexual conduct is contrary to Scout principles, but is conduct even at issue? Did the Scouts have any evidence that he ever engaged in any particular sexual activity, or did the parties stipulate that he is sexually active in any specific way? If not, was the presumption of behavior a matter of concern to the justices? And did they question whether the Scouts presume sexual behavior by unmarried heterosexuals, which would also violate the Scout moral code?
washingtonpost.com: Post editorial: Gay Rights, Boy Scouts (April 28)
Joan Biskupic: This case is most definitely NOT about conduct. Neither side made any claim that Dale was engaging in any homosexual behavior on troop time, or even was advocating for gay rights. It's more a question of identity. The Scouts say that forcing the group to accept an avowed homosexual would conflict with its message that boys should be "morally straight" and that it would require the group to associate with someone with whom it disapproves.
The question about heterosexual misconduct came up, mostly from Justices Ginsburg and O'Connor. The lawyer for the Scouts said that people have been kicked out for being in adulterous affairs, but he said he didn't know of anyone who'd been dismissed for living with a woman, without benefit of marriage.
Towson, Md.: Today's hearing, California Democratic Party v. Jones got very little press coverage. What impact will 4th Circuit's rulings on sexually segregated ballots (Bachur v. Democratic National Party, Kokkonen v. DNC) have if either party challenges open primary under the 15th or 19th Amendments. See, Rice v. Cayetano and Leser v. Garnett.
Joan Biskupic: Another reader who didn't see the story about the arguments in the California "blanket primary" case this week. I am definitely going to mention this to my editors who are always trying to convince me that A-2 is almost as good as A-1. No, everyone reads right over A-2. (It used to be a heavy ad page).... Anyway, the question in the case is whether California's primary law that allows voters to cast ballots across party lines violates political parties' rights to choose their nominees. A ruling in the case could affect these blanket primaries, as well as all the "open" primary states, which allow people to register for a party on Election DAy. It all boils down to how much control parties have over who picks their nominees-- an important question in this election year when John McCain was able to win the Michigan GOP primary with help from cross-over Democrats and independents. ... And we'll have to see how those local lower court cases unfold. No predictions yet.
Arlington, Va.: The comments about pedophiles reflect the difficulty that courts have in making rational decisions to emotional questions. One that flares up is the court's decision that flag burning is constitutional. In spite of some Cuban-Americans burning the American flag in Miami, a majority of the Congress seems think the Constitution needs to be changed to protect us against it.
Joan Biskupic: Interesting point.
Alexandria, Va.: Hello Joan,
I attended the Boy Scout hearing earlier this week as a member of the press and found it extremely difficult to get everything down on paper since the justices were asking questions so fast and the lawyers were trying to squeeze in their arguments in such a limited amount of time. Does the court make transcripts available to those who cover it, or do people who cover the court regularly rely on shorthand?
Joan Biskupic: No, the court does not make transcripts available the day of the argument we have to wait at least a week. It is indeed tough to cover these sessions, especially for visiting reporters who might not be accustomed to the justices' voices and sitting in the back with virtually no view of the bench. I think most of us regulars use a combination of long-hand and makeshift shorthand. It's very hard to get everything exact. I'll often paraphrase big chunks of dialogue.
Horsham, Pa.: I've always heard that A-3 is almost as good as A-1 because the eye automatically looks to the right page of the newspaper when you open it up.
Screw A-2... go with A-3!
Joan Biskupic: That's the spirit! ... Yes, and A-3 is more of a "display" page, where we can run larger pictures ... My abortion set-up piece ran on A-3 last Sunday, and I actually thought that was pretty good "play" especially given that the front page was taken over by the Elian news. (For those of you not in the business, often the hardest part isn't reporting the stories, writing the stories, it's getting the space and "play" inside the paper. Hundreds of reporters compete for space each day.)
Dallas, Tex.: Isn't it true that most of the justices have formed their opinion of a case before oral arguments are heard?
However, with the exception of Justice Scalia, doesn't it seem that they are having a difficult time deciding the BSA v. Dale case? I note that four of the Justices have been Boy Scouts, and one is an Eagle Scout.
Joan Biskupic: You're right about the four scouts (Rehnquist, Scalia, Kennedy, Breyer), and Breyer is the one who attained the high rank of Eagle Scout. ... Have they made up their minds about a case by the time of oral argument? They probably know which way they're inclined to rule (having already read all the written materials). But I think the arguments help focus their views, maybe open their eyes to the nuances of a dispute, maybe even make them think about an angle that they hadn't considered.
Clearwater, Fla.: After searching and searching, I can find no site which can tell me the upcoming cases to be argued before the Supreme Court in the coming months. Is this my failure or has the court simply not decided yet?
washingtonpost.com: You can find the court's docket, briefs, lower court decisions and other supporting materials on the docket page in our Supreme Court special report.
Joan Biskupic: You found no listing of new cases to be argued because the court is now done with oral arguments for the term. Those hearings ended last Wednesday. Now, we'll just have sessions in which the rulings are announced. The next round of oral arguments begins in October.
Towson, Md.: Joan,
Thanks for the answer. I did see your story on the California Democratic Party case. But I had submitted the first question early (on the day of the hearing). Your story ran on the day after.
Joan Biskupic: Oh, that clear that up. I wonder if I should re-consider my view of A-2.
Joan Biskupic: And that's it for today. Thanks to all of you. Sorry to those whose questions are still pending. We'll get to them next week. Watch Monday for another batch of rulings from the court.... and also look to the Federal Page on Monday for the latest "Full Court Press" monthly installment. Happy Birthday, Justice Stevens!
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