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Holding Court with Joan Biskupic

Holding Court
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Friday, May 5, 2000; 11 a.m. EDT

No more oral arguments are scheduled to be heard at the Supreme Court this term, but the court's business goes on as the justices mull their decisions in a host of controversial cases, from the dispute over reading Miranda rights to school prayer and so-called "partial birth" abortions. Court watchers speculate about how the justices will rule and how sweeping their decisions will be. Talk about this Supreme Court term and the cases yet to be decided 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. First, a few announcements. Because I will soon be leaving The Post, we're going to do two special editions of "Holding Court" over the next two weeks. The first will be Wednesday, May 10, at the usual time of 11 a.m. EDT. It will be a student edition, focusing on basic questions people have about the court (how do the justices decide which cases to take, who decides who gets to write the opinions, what happens when someone calls in sick – a student asked Justice Breyer that recently).

Then on May 19, at 11 a.m. EDT (back to our regular Friday time-slot), we'll have our last session of "Holding Court," a free-for-all about this term's cases and what it's like to cover the highest court in the land.

But let's begin today. Send in your questions about the labor or criminal law rulings from earlier this week, or ask about the biggies the court just heard on abortion, Boy Scouts, Miranda, etc.

New York, N.Y.: In your opinion, could the Supreme Court accept the Elian Gonzalez case for review?

Joan Biskupic: The court COULD accept the case, because at bottom it is about asylum standards in federal law, and the justices would have the last word on interpreting those standards. But the question is also, WOULD the court take it? We have a fairly unusual case here, and the justices tend to want to weigh in on disputes of broad national interest, or when lower courts are split. We'll have to see how the 11th Circuit ultimately resolves the Elian question. That will help better predict whether the high court would take up an appeal.

Seattle, Wash.: Obviously state supreme court decisions can be appealed (i.e., Dale v. BSA) but what if the state supreme court doesn't accept the case for review? Can that be appealed? On a related note, are state supreme court decisions appealed directly to to U.S. Supreme Court or to an appeals court first?

Joan Biskupic: I'll answer your last question first. State supreme court decisions go directly to the U.S. Supreme Court, with no detours to lower courts. Even if a state supreme court summarily affirms or rejects an individual's lower court ruling, the individual can still appeal to the U.S. Supreme Court. But state courts have the last word on what the law of a state is. ... That is, state supreme courts are the final arbiters of what exactly state law requires. But, if the dispute concerns whether a state law is constitutional, that ultimately would be determined by the U.S. Supreme Court.

Towson, Md.: This week's "Ex Post Facto" case from Texas cited Calder v. Bull (from 1798). It also named Sir John Fenwick from England. (1696). Many search engines on the Internet could not locate the Calder case. Finally, FindLaw did.

In your opinion, what is the best case locator?

Joan Biskupic: You're referring to the 1798 case that was the Supreme Court's first review of ex post facto laws. These are laws that generally make some action illegal that already has taken place. I use FindLaw a lot, but I also use Lexis-Nexis and some other search services. ... I think Calder v. Bull (heavily cited in this week's Carmell v. Texas) would have been a perfect case for the Supreme Court Web site to put up. I'm not sure whether the court's new site is equipped to link to all the cases referred to in an opinion, but that would be a terrific service for the public, wouldn't it?

Worcester, Mass.: Who is the best athlete on the U.S. Supreme Court? Which justice has the most artistic talent?

Joan Biskupic: Whoa.... these questions are out of left-field, but just the kind I like. Retired Justice Byron "Whizzer" White was one of the best athletes. Earned his name playing football, continued to play basketball in the court gym until recent years. Right now, I'd say Justice Sandra Day O'Connor is among the best athletes, if not the best. She does whitewater rafting, rides horses, runs an aerobics class. Chief Justice William Rehnquist is quite the amateur artist. He does watercolors. Or, at least he used to. He once missed a State of the Union speech to attend a painting class.

washingtonpost.com: Here is the URL for the discussion on Wednesday, May 10.

Arlington, Va.: Could you talk about the Texas retroactive decision, particularly the very strange bedfellows on both sides of the opinion?

Joan Biskupic: Sure. The court ruled 5-4 that Texas had wrongly enforced an evidentiary standard for testimony in sexual assault cases that wasn't in effect at the time of the crime. (The case involved a man who was accused of attacking his step-daughter.) As an earlier reader pointed out, the case required the justices to interpret their earliest precedent on ex post facto laws (the 18th Century's Calder v. Bull). I think that helped contribute to the odd split among justices. Stevens and Scalia were in the majority (that's rare) along with Souter, Thomas and Breyer. In dissent were Rehnquist, Ginsburg, O'Connor and Kennedy (those last two are hardly ever on the losing side of tight cases, and rarely are both of them on the losing side.) But, again, I think it's because this unusual case required the justices to look back at the standards set in 1798 and to determine exactly what changes in criminal law should be considered ex post facto.

Annapolis, Md.: Given the young age of the court, it seems that the person elected in November, assuming that they last one term, will probably not be able to appoint any Supreme Court justices. Do you agree?

washingtonpost.com: A facetious comment, and a subject of incredibly sustained debate. See our transcripts.

Joan Biskupic: Okay. As I've said before the two justices most likely to step down during a new administration would be Justice Stevens, who turned 80 last month and has been on the bench since 75, and Chief Justice Rehnquist, who's 75 and been on the court since 1972. The rest are relative spring chickens.

D.C.: The obvious follow-up: Where is Justice O'Connor's aerobics class and where do we sign up!

Joan Biskupic: Alas. It's by-invitation only. And it's held in the gym on the top floor of the court building (known as the highest court in the land).

Fredericksburg, Va.: What is the possibility the justices might accept Hope Clinic v. Ryan (the 7th Circuit D&X decision) after deciding Sternberg v. Carhart? Is it possible they might have decided to take the former as soon as a writ of certiorari is filed, intending to create a "composite" precedent in the hopes that two decisions on the same issue might represent the court's position on the issue better than either case by itself? Has the court ever tried this approach with past constitutional issues?

Joan Biskupic: No, typically they return the related case to the lower courts for review, in light of their new ruling on the case they did hear. In this situation, how ever the justices rule in the Nebraska dispute (from the 8th Circuit) will likely determine whether the 7th Circuit decision in HOpe Clinic was right or wrong. (The 8th Circuit struck down "partial birth" abortion laws; the 7th Circuit upheld them.)

WDC: First Phyllis now you!!! For what job/position/place/etc. are you leaving The Post?

Joan Biskupic: Oh, I hate that Phyllis Richman (our great restaurant critic) has retired! ... I'm moving over to USA TODAY. So you folks will just have to start reading two papers.

washingtonpost.com: Not to mention our Supreme Court special report.

Hyannis, Mass.: Given the serious health scares of presidential candidates Paul Tsongas, Bill Bradley and recently Justice Ginsburg, and Justice Rehnquist's belatedly disclosed addiction to pain-killers several years ago, do you believe that The Washington Post and other media outlets should press the justices and appointees to the court about releasing to the public annual physical reports and medical histories?

Joan Biskupic: That's a tough question. Situations involving Supreme Court nominees are different, because the president himself is not going to name someone who he thinks will not have several years (if not decades) on the bench. I actually would not be inclined, as a reporter, to press for a judicial candidate's medical history.... unless there was some unique situation that warranted it.

Towson, Md.: Joan,
Just when I am able to read you live (instead of transcript) your opening announcement about your departure from The Post was stunning-and sad. Where are you going and who is going to your place?
(Metaphor about "big shoes" objected as improper question)

Joan Biskupic: As I told an earlier reader, I'm switching over to USA TODAY ... but I'll still be covering the court, just for a broader, nationwide audience. My successor here, at least for the near future, is Ed Walsh, a wonderful veteran reporter, whose most recent gig was trailing John McCain. He's also covered lots of Justice-related issues. So watch for his work later this month.

Elkton, Md.: What is the difference between the State Supreme court, the circuit courts, and the various court of appeals? Do different types of cases go to each? Are they at different stages in going toward the Federal Supreme Court?


Joan Biskupic: Good, fundamental question about how the courts work. The federal system is separate from the state systems. On the federal level, you begin with a trial court, then appeal to the various regional circuit courts (such as the Atlanta-based 11th Circuit now hearing the Elian case). Final appeal goes to the U.S. Supreme Court. State systems vary, but generally after a person has reached the state's highest court, he or she can appeal to the U.S. Supreme Court. ... The Supreme Court sits at the top of both systems, the final arbiter of our constitutional rights.

Clarksville, Ark.: I regret that I have not taken the time to research the Boy Scout case, having graduated from its ranks; nonetheless, can you explain the federal government's rationale for such invasion of right of association into this private (not public) organization? Is it federally funded?

Can a heterosexual male boy enjoy a private organization? The government intrusion in private associations... are there any forseeable limits?

Joan Biskupic: The federal government isn't the main actor here. It's the state of New Jersey. New Jersey has a law forbidding discrimination based on sexual orientation in public places. When the New Jersey Supreme Court interpreted that law, it said that because the Boy Scouts have a broad, open membership, the organization should be considered a place of "public accommodation." Once the state high court decided that, it then considered the Scouts' argument that it had a First Amendment right to deny membership to a person who compromised the group's message of "clean" and "morally straight" boys. The U.S. Supreme Court has just heard the Scouts appeal of that First Amendment issue and will likely rule on the case in late June.

Milwaukee, Wis.: Why doesn't the EEOC investigate the lack of minority law clerks at the high court? If a private employer engaged in similar conduct the EEOC would at least investigate. Why is the court exempt from the law and is that fair?

Joan Biskupic: No one has charged that the justices are deliberately discriminating against racial minorities. The people on the Hill and in civil rights groups who have complained about the dearth of minority clerks are, rather, trying to encourage the justices to broaden the pool of applicants and put more of a priority on hiring blacks and Hispanics.

Alexandria, Va.: Ms. Biskupic,

We certainly will miss your articulate, well-written articles. USA Today? Shame, shame.

So what is this about Rehnquist and painkillers?! Some of us missed this. Certainly calls into question his ability to do his job, doesn't it? Any other government employee who was addicted to drugs could say goodbye job.

Joan Biskupic: WHoa... I'm glad to correct any mistaken impressions about the Chief Justice. The earlier reader was referring to old news, from decades ago, about the chief's problems with pain-killers related, if I'm remembering right, to his bad back. ... So you haven't missed any news. This is all ancient history.

Cambridge, Mass.: Last week, I spoke with the Librarian of Special Collections at Harvard Law School. He let me know that he was currently "fighting" with Library of Congress in Washington, D.C., to be appointed as the repository of Justice Breyer's legal, court, legislative, and personal papers. Of the eight other Supreme Court justices, which justices have already designated their papers to a particular library for historical safe-keeping and review and which libraries have already been designated by particular justices?

Joan Biskupic: This is an interesting question, and I'm not sure I know all the answers. Many of the justices have arrangements with the Library of Congress, although the late Chief Justice Burger put his papers down at William and Mary and the late Justice Powell deposited his at Washington and Lee University, if I'm remembering right. Usually the public doesn't have unrestricted access until a justice has died, per a prior agreement. That's why it was such a big deal when Thurgood Marshall's papers became widely available within months of his death in 1993. ... Breyer, who graduated from and has taught for several years at Harvard, has a special relationship there... but I don't know about any "fights" over his papers.

West Boylston, Mass.: Will any of the Supreme Court Justices be attending Cardinal O'Connor's funeral in New York on Monday? If so, do justices who miss an oral argument still retain the right to participate on a case?

Joan Biskupic: At this point, I'm not sure if any are going to the funeral, but I wouldn't be surprised if such a figure as O'Connor would draw at least one justice. As for oral arguments, they are over for the term. We have none until next October. But if there were arguments Monday and a justice missed, he or she still would be able to participate in a case. It's happened before, when justices were out for medical reasons.

Amsterdam, Holland: Will Ed Walsh be Holding Court too ?

Joan Biskupic: I'm not sure..... I've asked him about it. But he said he wants to try to get used to the beat first, then figure out what extracurriculars he wants to undertake. I'll let him know that the folks in Amsterdam are interested.

Joan Biskupic: That's it for today, although I know I have some interesting questions pending, including from a Boston reader who's asked who the most arrogant justices are. Hmmmm.... I'll try to get to these questions over the next two weeks. Remember, next week's nuts-and-bolts session will be on Wednesday, and if you have any students in your house encourage them to submit questions early. Thanks to all.

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