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Special Edition: Holding Court with Joan Biskupic

Holding Court
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Wednesday, May 10, 2000; 11 a.m. EDT

How did the Supreme Court evolve from what the founders laid out in the Constitution to what we have today? Why are there nine justices? How many cases do justices typically hear in a term? What do clerks do?

On Wednesday, May 10, "Holding Court" did a nuts and bolts session for students – students of all ages, anyone (young or old) who has questions about how the black-robed nine do their work. Discussion ranged from how the court decides which cases to take, who gets to write the opinions, what their chambers are like and what they do during those great summer recesses.

Maybe you joined us for the first time. Or maybe you've been with us each week for the past year and afraid to jump in when others were asking about the future of the 10th Amendment or the details of search and seizure law. Whatever the situation, here was your chance to ask about the personalities of the justices, some of their bigger cases and how these nine individuals go about establishing the law of the land.

For the regulars in the crowd, this special session on Wednesday, May 10, at 11 a.m. EDT substituted for our usual Friday time. But the following week, Friday, May 19, we'll be back for a final installment of "Holding Court." The transcript follows:

Joan Biskupic: Today, we're going to try to do a special hour on Supreme Court essentials, what the justices are like, how they work, why it matters so much. So send in those questions that you always wanted to ask but feared our usual lawyerly crowd would think ignorant. And for you "Holding Court" regulars, go ahead and raise your queries, too. We have such a good slate of pending cases this term, from abortion to grandparents' rights to school prayer, that it would be a shame not to talk a little about what's going on up there this term.

Miami, Fla.: When justices vote down hearing a case, does the opinions of the court of appeals or state Supreme Court become precedent for the rest of the nation to follow on a certain issue?

Joan Biskupic: Hello, Miami. Good question. No, it doesn't become precedent or the law of the land. When the court turns down a case, which it does for the majority of petitions it receives, it only means that the justices have chosen – at this time – not to intervene. The lower court ruling stands and becomes the law only in the jurisdiction that it covers. For example, if the court leaves in tact a ruling from your Florida Supreme Court, it would be the rule for Florida. If the justices leave alone a ruling from the federal 11th Circuit, which covers Florida, Alabama and Georgia, that lower court decision would cover only those three states.

Because the justices never explain why they are turning down a case, we never know whether they agree with the lower-court decision, don't agree with it, think the case has some procedural flaws, think the situation is unique, or (shrug) just don't feel like hearing it.

Concord, N.H.: When an opinion is delivered, what is your way of reading the opinion and submitting a story? Do you read the entire opinion or do you do something that is similar to a last second book report in grade school; read the jacket then the first and last chapters?

My only experience in reading opinions was in college for a judiciary class. They were short cases that were less than 10 pages. I never got the hang of what to read and what to skip.

Thank you

Joan Biskupic: How I wish there were a short-cut! I read the entire ruling and any concurring or dissenting opinions. On rare occasions, particularly in late June when the decisions come fast and furious, I may have to skim parts of some rulings... simply because there is too much paper to go through on deadline. Maybe I'll race over the sections recounting the facts of the case and what lower courts have ruled--because I already know that. What I most want to understand is how the justices have ruled and why. ...

There is often so much to digest in the last weeks of the term that I sometimes go back to the opinions afterward to see if I missed any nuances that might make for good stories in the future.

Albany, N.Y.: Hi Joan. Many of us law students are going to miss your work at The Washington Post.

Last month, in the case of Free v. Abott Laboratories, Inc., the Supreme Court affirmed by a divided court (4-4) a lower court holding. Justice O'Connor took no part. What is the precedential value of such a decision? Why weren't the names of the Justices listed according to how they voted?

Many of us interested in civil litigation had hoped that the case would solve the question whether or not 28 U.S.C. 1367 had overruled the Supreme Court's holding in Zahn v. International Paper Co., 414 U.S. 291 (1973), which held that each plaintiff with a related claim must have the requisite amount (more than $75,000) to confer diversity jurisdiction.

Did the ruling, given the 4-4 split?

Thanks, and good luck.

Darren Cunningham '01
Albany Law School of Union University

Joan Biskupic: No, the two sentence opinion did not list how the eight justices lined up. Unfortunately. And what it means is that the ruling of the Fifth Circuit stands-- applying to the states of Texas, Louisiana and Mississippi. ... And thanks for your kind words... I've gotten a lot of smart questions from Albany over the past year.

Towson, Md.: Pending before the court is a "right to pray" case Santa Fe ISD v. Doe from Texas 99-62. Lower courts (Barghout v. Bureau of Kosher Meat and Food Control, Koenick v. Felton from the 4th Circuit) have challenged religious practices. But the court in Lynch v. Donnelly said that the "wall" is only a useful metaphor. Will the Pawtucket case be the precedent for "right to pray" or will the court go back to the founding fathers?

Joan Biskupic: Hmmm. Lots of prayer questions there. Indeed, the "wall" of separation between church and state is not impenetrable. And the high court (particularly in recent years) has allowed a certain degree of mixing between government and religion. In the Santa Fe, Texas, case before the justices, the question is whether a public school district may allow students to deliver prayers at football games. A lower court ruled against the school district. This case is being closely watched because a decision could reveal whether the court has any interest in backing away from its strict rules against school prayer.

Annapolis, Md: Thanks for your time. Can you tell me how a case ends up in the Supreme Court? Let me give you an example case. I'm washing my car in the nude, and am arrested by AA County Police for indiscreet dress. What is the path to the Supreme Court?

Does the path to the Supreme Court differ if a federal law is broken vs. a local law?


Joan Biskupic: Well, now there's an attention-getting hypothetical. Let's say that you decided to challenge the anti-nudity ordinance as an infringement on your right to free expression. So you would go to federal court claiming a violation of the First Amendment. The city would defend the ordinance as a rationale rule for keeping the peace, protecting public morality, etc... If you lost in lower fed courts (which you would, of course) you would keep appealing up to the Supreme Court. The justices would have the option of deciding whether to take the case or not. (Not.) Finally, if you had sued in state courts, rather than federal, the dispute would similarly work its way up to the U.S. Supreme Court. The justices take final appeals from state high courts or from the federal circuit courts.

Waltham, Mass.: How does a visitor to Washington, D.C., receive a ticket for a public spectator seat on the court?

Joan Biskupic: No tickets. But you do have to wait in line on the marble steps. On days when the court will be hearing closely watched controversial cases, people begin lining up well before dawn. But on regular days, the line typically begins around 8 or 9 for the 10 a.m. opening gavel.

Newton, Mass.: Joan, the Supreme Court issued no opinions or orders this past Monday, May 8. Were they playing hooky and can we expect any opinions or orders this week?

Joan Biskupic: Yes, they were in a recess. It's a traditional Monday break between the last round of oral arguments and the start of the big May-June decision weeks. They'll be back this Monday, the 15th, presumably with a few good rulings and orders that will make the news.

Raleigh, N.C.: How many people tour the Supreme Court in a typical week? A year? Is there guided or self-guided tour, and how do I go about getting there?

Joan Biskupic: Thousands come through each week. You can get one of the regular tours (again, by waiting in a line) or you can wander around yourself. The ground floor has a lot of nice, accessible exhibits and a very good film on the court (that runs continuously). The next floor up is the courtroom, and you can get a guided tour or peek in on your own.

Little Compton, R.I.: What is the Web site address for the new Supreme Court Web site and what things can I find posted on the site?

washingtonpost.com: And while I give a thumbs-up to the new court site, I feel compelled to throw in a plug for our own Supreme Court Special Report.
— Lisa.

Joan Biskupic: Their new Web site is at www.supremecourtus.gov.... and it's fairly basic at this point – info about visiting the court, biographies of the justices and the all the opinions for this term. But it's helpful for anyone trying to become familiar with the highest court in the land and a great way to obtain the full text of opinions on the day they are issued.

Smithfield, Idaho: I think in the Constitution, the justices are guaranteed their salaries and position for life. But what about all their other expenses: offices, clerks, copiers, computers, telephones, guards. I bet it adds up to a lot of money! Are those guaranteed, too? Or can Congress give the justices more or less money when it likes or doesn't like their decisions?

Joan Biskupic: Now, that would be great leverage. But it doesn't happen that way. You're right that Congress cannot lower the salaries of the justices... but it still has broad latitude over money for the court's building, grounds, equipment, etc... Right now, as a matter of fact, the court is asking for a pretty hefty increase in its appropriation to update its 1935 building, improve security, modernize the technology. ... I was at a budget hearing recently, and some of the members of Congress referred to the delicate relationship between the branches. But I've never heard any suggestion that how the justices rule would influence their funding.

Suitland, Md.: What do you think each of the justices is wearing under their robes? Does it vary by season? Following on the carwashing while nude question, could you tell if they were naked under there?

washingtonpost.com: Oh my.

Joan Biskupic: Yes, it varies seasonally and by whether they are liberal or conservative.

Cary, N.C.: The judge in the Microsoft anti-trust case has indicated his desire to have the appeal handled immediately by the Supreme Court (as was done for the AT&T anti-trust case). Do you have any feel as to whether or not this court would take such an expedited appeal?

Joan Biskupic: No, I don't. And I've been getting varied views from anti-trust specialists. My gut is that the high court wouldn't want to take it without a hearing first by the Court of Appeals for the D.C. Circuit, which could narrow the issues for the justices in this complicated case. Just so you know, it would take four justices to vote to agree to hear the expedited appeal.

Bethesda, Md.: Living or dead, who is or has been your favorite justice to cover? In your opinion, which court has been the most influential and why?

Joan Biskupic: Justice Scalia has provided me with the most material, so he's a favorite in many ways. I think Justice O'Connor is most influential on the bench today.

Norwood, Mass.: Who's the grouchiest, the most arrogant, and the sweetest Supreme Court justice?

Joan Biskupic: This is tough. Scalia can be a very public grouch (but so was Justice White, who retired in 1993, and the chief justice has his moments when things don't go right in the courtroom) ... And all three of them have other sides. Justice Powell, who died just a few years ago, was the absolute sweetest, most mannered of any justice I covered. And the most arrogant? I'm not touching that question.

Arlington, Va.: What attributes must a case have for the court to hear it?

Joan Biskupic: The justices like most to see what's called "a split in the circuits," that is, conflicting rulings by the regional circuit courts of appeals. That encourages the justices to intervene and clarify the law. They also look for cases of national importance, large legal questions.

Arlington, Va.: How do the duties of the chief justice differ from the duties of the eight other justices?

Joan Biskupic: The chief justice gets one vote, just as all eight others do. But he keeps the train running, supervises administration of the court. He leads the weekly conferences, oversees the opinion-writing, tries to keep his colleagues on deadline. That last part is very hard, he says.

Arlington, Va.: You've always been good about answering questions that were impertinent from me so here goes another. It is a common practice for the Attorney General to argue at least one case before the Supremes? I would suspect, however, state attorneys general are more apt to want to take that opportunity themselves. Having worked for one who is now a governor, I can't imagine they fare well. Do they generally do alright?

Good luck.

Joan Biskupic: Your suggestion is on-point. Attorneys general usually don't fare so well. They're typically political people who are used to making political, not legal, arguments. ... Attorney General Janet Reno appeared before the court about four years ago in criminal law case and did fine, though. No mistakes, nothing distinctive either. ... We mostly see state attorneys general up there, and while their records vary, as a group, they are not among the most effective advocates.

Silver Spring, Md.: I guess I've been out of the loop. You're leaving The Post? When? Where are you going? Best of luck in whatever you do!

Joan Biskupic: Yep.... and (sad to say) just one more edition of "Holding Court" left... next Friday, May 19. I'm going over to USA TODAY, but I'll still be covering the court. ... Ed Walsh will be succeeding me on coverage of the court here beginning on May 22.

washingtonpost.com: Here's the URL for next week's (final) Holding Court.

Suitland, Md.: So, in other words, you think the liberal justices are more likely to be "au natural" under their robes? Is that what you were saying?

washingtonpost.com: Probably not the kind of thing you discuss in chambers.

Joan Biskupic: No, that's not what I'm saying.... I'm refusing to reveal the court's closely guarded secrets.

D.C.: How much does a Supreme Court justice make? Also, if a SC Justice did something blatantly illegal (like accept a bribe to rule one way) does the lifelong appointment still hold true?

Joan Biskupic: The chief justice makes $181,400 and the associates $173,600.... And the only way that a justice can be removed from the bench is through impeachment and conviction.

Laurel, Md.: In yesterday's chat with Society reporter Roxanne Roberts, she said that Justice Souter was easily most conspicuously absent major Washington personality at off-hours functions. I would guess that he's basically a shy and introverted man, who doesn't mingle well in crowds. Is that right, and does it extend to talking to reporters?

washingtonpost.com: Yesterday's "Levy Live" discussion with Roxanne Roberts

Joan Biskupic: Justice Souter does keep to himself. But he's a friendly guy in smaller circles, rather witty. He simply isn't into the social scene, would prefer to read or watch TV (used to own a black-and-white set, not sure if he still does) and keep his own company. Chalk it up to his Yankee roots and bachelor status.

Towson, Md.: Last Sunday's book review "The Activists on the Bench" in The Post said that the justices "had the ability to read Gallup polls in The Washington Post and New York Times." Is the "Greenhouse Effect" on the court real and is there a "Biskupic Impact" also?

Joan Biskupic: I know the justices read the Post and Times and I know many of them are self-conscious about how their work is portrayed and about their public reviews... But the justices care more about the overall state of the law and what they want to do in a judicial realm. I don't really think there is a "Greenhouse Effect" (so-coined by a D.C. Circuit judge who argued the justices were voting in a liberal fashion to please the Times's Linda Greenhouse) and I really doubt that there's been a "Biskupic Impact."

Ft Wayne: In your years of covering the Supreme Court, which decision caught you most by surprise ?

Joan Biskupic: That's a good question. And I can't answer it thoughtfully with so few minutes left on our hour here... But the Casey abortion decision in 1992 was a surprise, given how three justices banded together to uphold Roe v. Wade. The flag burning case in 1989 was a political block-buster. ... This year, I was surprised that the Reno v. Condon drivers-license privacy case was unanimous. And who knows what surprises are left for the rest of the term...

Washington, D.C.: I just wanted to echo your comments about Justice Souter – a friend of mine clerked for him and found him to be a delightful person to work for. He's a huge Red Sox fan, and loves talking about baseball (but not to reporters!).

Ironically, Justice Ginsburg used to make the social rounds before she got sick, but I've met her several times and found her very awkward one on one.

Joan Biskupic: Thanks for your thoughts. A person's public persona certainly doesn't always match his (or her) personal style.

Joan Biskupic: That's it for today. Thanks to all who participated. These were great questions.... though I have second-thoughts about even taking on those nudity ones. What's happening out there??? Remember next Friday, May 19, will be our last day of "Holding Court."

washingtonpost.com: Again, here's the URL for next week's Holding Court, and if you sent in questions late, we're hanging on to them and will try to dip in to the mailbag. Thanks.

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