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Holding Court with Joan Biskupic

Holding Court
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Friday, May 19, 2000; 11 a.m. EDT

Though the justices are through hearing oral arguments for the 1999-2000 term, many significant decisions are expected in the coming weeks. From grandparents' right,the Americans with Disabilities Act and "partial birth" abortion to gay Boy Scouts, Miranda rights and school prayer disputes, it's been a term of significant issues and arguments.

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.

Biskupic has answered your questions on the Supreme Court and legal affairs on Fridays for nearly a year. Now she will be leaving The Post to report on the court for USA Today. Friday, May 19 marked the last regular "Holding Court" session of this term. Stop by to talk about the term and court business, to say goodbye and wish Joan well. Stay tuned for further notice of discussions about this term's decisions. The transcript follows:

Joan Biskupic: Welcome to this final edition of "Holding Court." I want to thank all you great readers who've joined in during the past year. A terrific batch of questions awaits us again this morning. But first, I want also to salute Lisa Todorovich, the producer of this on-line show, who helped create it and has been wonderful to work with over the past year. She keeps things hopping. So let's get going now.

Ventura, Calif.: Are we ever going to see the Supreme Court on television?

Joan Biskupic: Nope. Justice Souter has said it will only be over his dead body. And he's just 60, young in Supreme Court terms. Many of the others are against it, too.

New York, N.Y.: President Clinton will be out of office in just a matter of months, yet he keeps appointing people to the federal bench. Given his record on getting judicial appointments passed, isn't this just an exercise in futility? Or is the reasoning that if Gore wins, the nominations stay in the pipeline? But what happens to them if Bush is elected, and is this a last-minute attempt of a president trying to stuff the bench – like Marbury v. Madison?

Joan Biskupic: No, the nominations don't stay in the "pipeline" for a new administration. ... But Clinton is likely to try to bargain to get a few more nominees on the bench. And as I've said in the past, at the end of a presidential term, certain nominees become as much a subject of negotiation and lobbying as pieces of legislation. He'll be able to push a few of the less controversial ones through in the end.

Also, you refer to Marbury v. Madison. That's separate from Roosevelt's attempt to "pack" the bench. Marbury v. Madison is the 1803 opinion that gave the court the power to review acts of Congress and to determine the law of the land. Roosevelt's attempt to increase the size of the bench, to try to get more appointments at a time when no one was retiring, happened in the 1930s. That effort to get Congress to increase the number of justices was a famous failure.

St. Petersburg, Fla.: Of all the U.S. Supreme Court justices has there ever been "one" that has used the term "partial birth abortions" in any way shape of form??

Joan Biskupic: That's an interesting question. The 8th Circuit, whose ruling is before the justices now, noted that "partial birth abortion" has no fixed medical or legal significance. The justices haven't written on the subject yet, of course. The case testing whether states can ban this type of abortion procedure won't be decided until later in June. ... I don't have a transcript handy, but I think that if any of the justices used the phrase during oral arguments it was to repeat the words of the Nebraska statute. I recall them mostly referring to "the procedure."

Linda in East St. Louis, Ill.: Joan, how can I tell when the Supreme Court is about to release an opinion? One time you said "watch next week for more opinions" or something like that. Do you hear on the grapevine, or is it announced that a decision is coming down the line soon?

Joan Biskupic: Reporters are not told what opinions to expect or how many will be given out on a particular day. But we are given advance notice of the days that they will be issued (watch next Monday) and we are told whether it will be a "regular" day (meaning four or fewer) or a "heavy" day (meaning five or more). This Monday will be a "heavy" day. ..... We can only guess what's going to be handed down – maybe some of the older cases that were heard in the fall, such as the disputes over Playboy TV porn signals or public aid for parochial school equipment, will be in the batch. It's hard to predict until we get to the end of the term and there are only a few rulings left.

Silver Spring, Md.: Dear Ms.Biskupic:
Reviewing your recent coverage of the Supreme Court's decision in the Virginia Tech rape case, I have been left with a strong impression that the court took away a woman's right to sue her assaulters. But am I wrong in thinking that a woman may still sue in state court? The decision itself seems to be about whether Congress under the commerce clause may legislate in areas traditionally left to the states. Following its consistent conservative philosophy of federalism, the court has clearly stated that women may not sue for rape in federal court because it is a local matter. Shouldn't this mean that state courts may still consider civil suits related to assault, murder, rape? Clarification would be appreciated.
Thank you.

Joan Biskupic: Yes. The section of the Violence Against Women Act at issue involved FEDERAL civil penalties. So, yes, you're right, the ruling did not affect the possibility of state lawsuits.

Owings Mills, Md.: Joan: I wish you luck and continued fame at USA Today. Thanks for your weekly chats! They've been great.

Isn't the Boy Scout case a simple matter of whether or not the New Jersey anti-discrimination law violates the First Amendment? Why has it been presented strictly as a battle about homosexuality? Certainly, this term will end with plenty of controversial decisions, so why are people making the Boy Scout case to be something much bigger than it truly is?

Joan Biskupic: Well, it's rare that the subject of gay rights comes to the court, even though it's such a big topic out in America. So people are watching the court simply to see how the justices approach the issue. However, the legal question does boil down to whether the Boy Scouts First Amendment right of free association is violated by a New Jersey law requiring the group to admit a gay scoutmaster.

Appleton, Wis.: Joan:
Hello from the land of sausage, cheese and beer! All of your friends and family in Wisconsin are wondering why they had to first learn of your change in employment on-line. You big city folks need to learn to be little more personal and keep in touch with small-town middle-America on a more regular basis. Now the question: Considering that two of your brothers are long-time prosecutors in this state, do you feel that makes you biased toward the government when you write about criminal law cases before the Supreme Court? Or, is it possible that because of the torment your brothers may have put you through as a child that you are actually biased toward criminal defendants? I've always been suspicious of some journalists' baggage!

Joan Biskupic: WHO ARE THESE PEOPLE???? I'm putting this one up on-line only because I did indeed tell the "Holding Court" audience I was leaving the Post before I told some of my siblings. Hey, it's a big family. ... And journalists – baggage? Not at the Washington Post. Not at USA TODAY. (Call me later. We'll talk.)

Denver, Colo.: Who is the best writer on the court? Does the necessity of establishing legal precedent make an otherwise fluid author rather turgid and dull?

Joan Biskupic: Scalia is a very gifted writer. He uses a broad range of language, takes advantage of lots of metaphors and literary references. He cites Cole Porter. One criminal case last year relied heavily on a song from "West Side Story." His opinions are always lively. But many of the other justices write clearly .... and the use of legal precedent doesn't necessarily make things dull.

Houston, Tex.: Since the justices got it right this time do you feel that Supreme Court will continue to rule for individual freedoms and rights or do you think that the court will revert back to ruling against the basic foundation this nation's forefathers had set forth.

Joan Biskupic: I think they are definitely on a trend that you will appreciate.

Herndon, Va.: Ms. Biskupic: Thank you for your outstanding coverage, which enabled even a "legal idiot" such as myself to understand the working of the court and the legal issues involved. In your years with The Post, what has been the biggest changes you've seen in the court and in its coverage by the media?

Joan Biskupic: Thanks for your nice words. Your question is a big one. The court has certainly become more conservative in the past decade, in terms of how many cases it even reviews (far fewer than in the 1980s) and how it actually rules. And, as for the media, coverage of the court has waned. All the TV networks used to have people assigned to the court. Not any more. Some of the news services have also abandoned regular coverage, which makes it hard for reporters who fill in at the end of the term to get up-to-speed and understand the substance of the rulings. We haven't had a new justice since 1994 or a nomination fight since 1991. Those tend to focus attention on the court – although what really affects the American people is what's going on right now – as opinions are being written in some of the nation's biggest controversies (abortion, school prayer, Miranda rights).

San Antonio, Tex.: Hello Joan and good luck at USA Today. My question is this – Do you think that the Supreme Court will ever get Hopwood v. Texas – the school admissions case in which the Fifth Circuit said race could not be used as a factor for college admission. I understand there was a Michigan case in which the court ruled in favor of the University of Michigan concerning their admissions polices in regards to race.

Joan Biskupic: I can't predict where the case eventually will come from (Michigan, Texas or some other place) but the court is ultimately going to have to face how race can be used in school admissions. The court's 1978 "Bakke" ruling, which allowed race to be one of several factors involved in an admissions decision, is on shaky ground given the stance of this conservative court. But whether Justice O'Connor (a key vote on the topic) would vote to reverse Bakke is very much an open question, as is what will happen in the next couple of years in lower courts. This is a very important issue for the country and it is likely to work its way up to the court soon.

washingtonpost.com: University of California Regents v. Bakke, 438 U.S. 265 (1978) (FindLaw)

Tulsa, Okla.: Do you think a reporter needs a law degree in order to cover the Supreme Court? How does the degree help? And aren't there reporters without such a degree who cover the court?

Joan Biskupic: No, a reporter does not need a law degree to cover the court. I happen to have one and so do a few of my colleagues, but most of the reporters up there do not. What helps is time on the job. Since "precedent" is such a big deal for the court, it helps to have been following cases, to understand where the justices are at, legally .... Reporters for the NY Times, Baltimore Sun, NPR, for example, don't have law degrees but they each have been watching the court for so many decades they know more than many law profs.

Kansas City, Mo.: Joan: Justice Scalia seems to relish oral argument. What verbal exchange between Scalia and counsel is most memorable to you?

Joan Biskupic: So many arguments. So little time.

Margaritaville, USA: Joan – I wanted to tell you how much I've enjoyed these chats, and to compliment you on the job you do explaining complicated cases to lay people. I'm the Ninth Circuit clerk who has written in on the Kozinski-Lazarus feud, among other topics, so I keep up with Supreme Court cases and other legal hot issues. But I think your columns and these chats really help average readers understand issues that often defy thumbnail summaries and lend themselves to jargon. Keep up the good work at USA Today!

Joan Biskupic: Thanks. And, oh, the Kozinski-Lazarus feud. It hasn't ended! (For those who don't know what we're talking about, it involves a 9th Circuit judge and the author of "Closed Chambers." You can find a recounting of it in the "Holding Court" archives.)

washingtonpost.com: FYI, the Holding Court archives

Washington, D.C.: Is it even remotely possible that the court will in the near future overturn Roe v. Wade?

Joan Biskupic: No, I truly don't believe this court or any future one will overturn Roe v. Wade. It's too much a part of America now, for better or for worse, depending on your view.

Alexandria, Va.: Joan: Our Thursdays and Fridays will be a lot drabber without you and Phyllis. I hope that your successor will continue your on-line chat. Do you think that in the future, the court will become less secretive in its proceedings? Thanks.

Joan Biskupic: First, an answer to your second point: No, I don't think the court will become any less secretive in the near future. The justices' habits are so ingrained. I think they fear revealing too much about how they operate, that somehow that will lessen the public regard for their work. But the public has such a thirst for what goes on up there, for all the right reasons. People want to understand how the court decides the law of the land. ... And on your first point, I, too, will miss our restaurant critic Phyllis Richman. She and I actually are pals. (Oh, the meals I've eaten on her tab!) Somehow there's common ground for the law and good food.

San Bruno, Calif.: Considering the small amount of cases the court will accept for review, is there any support for creating another appellate court superior to the circuit courts but inferior to the Supreme Court?

Joan Biskupic: I haven't heard that seriously mentioned in a long time. I think the late Chief Justice Warren Burger had raised the possibility at one point, but I haven't heard it discussed in recent years.

Washington, D.C.: On the subject of lively writing, I saw that Justice Ginsburg recently devoted a footnote to a long quote from Alice in Wonderland (to the effect of sentence first, verdict later) and, of course there is the classic Blackmun baseball footnote.

Joan Biskupic: Oh, yes. There are lots of examples through the years of justices turning to literature, and it's such a delight to see when reading an otherwise difficult, heavy-duty opinion. ... As I said, Scalia does it the most.

LeGrand, Iowa: Is the current Supreme Court "strict" or "broad" in how it interprets the constitution, federal laws, and what its role is in the government?

Joan Biskupic: This court tends to narrowly (strictly?) interpret federal laws and the Constitution. With some exceptions, this court has assumed a limited role for itself in terms of solving today's social dilemmas. It review statutes and delves into constitutional disputes, of course, but it tends to try to stay out of the political/social fray.

Washington, D.C.: What was the most controversial issue on the Supreme Court since 1992? And why are many lawyers using legislative histories in their briefs while several Supreme Court justices are ignoring this issue?

Joan Biskupic: Since 1992? Still abortion, school prayer, guns ... and for those of us concerned with the balance of power between the feds and states, the court's emphasis on federalism. ... Some of the justices complain about the reliance on legislative history (that is, congressional floor statements, committee reports, debate that led up to passage of a law), but such legislative history remains a useful guide in the many cases that test what a particular statute means. We saw it in the FDA/tobacco case... The question was whether Congress had wanted the FDA to have authority to regulate cigarettes – the justices had to look at the history of the FDA law's passage, other federal statutes and how all those laws had been interpreted over the years.

Washington, D.C.: Can you tell us a little bit about your replacement?

Joan Biskupic: Yes, Ed Walsh will be finishing the term. He's been at the Post for nearly 30 years, a real pro. He most recently covered the McCain campaign and did work on the Justice Department beat. .... And Ed is, coincidentally, from my neighborhood on the South Side of Chicago (which also happens to be Justice Stevens' neighborhood). That's how we choose people here.

washingtonpost.com: God bless the Midwest. — Lisa (hometown: Milwaukee, Wis.).

Germantown, Md.: Joan:

How do you think the court will rule on the grandparents' rights issue?

Joan Biskupic: This is a very tough question. It's a clash between parental rights and grandparents' interests ... and simply judging from the oral arguments, I think the majority is more likely to side with the mother's position in this case. That's a short, incomplete answer but we're out of time. Alas.

Joan Biskupic: Thanks so much to everyone. There are lots of questions left in my queue. And I'll read all of them. Sorry I won't be able to respond. Keep reading The Post and start reading USA TODAY. I appreciate the lively, intelligent discussions we've had over the past year. Thanks to all of you who joined in or read the transcripts after our hour was over. Thanks, mostly, to Lisa Todorovich who did a wonderful job producing "Holding Court." Let's put her on the bench!

washingtonpost.com: Thank you to everyone who joined us. Joan, it's been such a pleasure to work with you. You have translated the law and legal jargon into plain English and made it understandable for our readers and me, and this has been my own personal version of law school. We'll miss you. Best of luck. — Lisa.

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