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The Supreme Court
Michael Gerhardt
William and Mary Law Professor

Wednesday, June 18, 2003; Noon ET

What are your thoughts on the Supreme Court upholding Richmond's controversial anti-loitering law? How does the recent decision that the government can ban campaign contributions from advocacy groups impact the 2002 McCain-Feingold law? With the term coming to a close, what are the chances we will hear of a retirement in the coming weeks?

William and Mary law professor Michael Gerhardt was online to discuss the Supreme Court.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.



Washington, D.C.: There is a lot of talk about potential retirements after this term. Who are the likely candidates to step down and why?

Also, who are the candidates on the "short list," if there are retirements?

Michael Gerhardt: There is, as you say, a lot of speculation about possible retirements. The speculation largely derives from the expectation that if anyone is disposed to leave the Court he or she would do it now rather than in an election year. There are no other signs of an impending retirement, though. In any event, the names most commonly circulated are the Chief Justice and Justice O'Connor; they are usually mentioned. The "short list" that is often reported includes the current White House Counsel, Alberto Gonzales; 4th circuit judge, Michael Luttig; and 3rd Circuit Judge Alito. Most expect the President wants to appoint a Hispanic.

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Long Beach, Calif.: It is my opinion that this decision over loitering is more important than most people know. I live in California, and futuristic studies paint a bleak picture of walled communities that isolate themselves from a decaying infrastructure. This ruling will continue the bunkering of America, and the disconnect between haves and have-nots.

Your opinion?

Michael Gerhardt: I am not sure how portentous the decision is. The facts in these cases are often critical. In the case before the Court, the Court found dispositive the fact that an order precluding the defendant from entering the property preceded, and had not been based on any, indication he intended to engage in protected activity.

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St.Leonards, East Sussex, U.K.: The recent proposals to introduce the death penalty for terrorists seems to be incongruous to international calls for the U.S. to comply with abolitionist human rights standards. Which way do you think the votes will swing?

Michael Gerhardt: I am confident if the federal courts address the legitimacy of the measures you mention they would uphold them. The courts tend to be quite deferential to the Chief Executive on matters relating to national security. The inconsistency you mention is over policy; while the policy is clearly constitutional (in this country), it leaves open the question whether a different administration might prefer a different policy. Not sure it would, because Americans seem overwhelmingly to support the strongest possible measures to protect against terrorism domestically.

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Highland Mills, N.Y.: How do you anticipate the court will decide Newdow v. United States of America?

Michael Gerhardt: Sorry to say I have no predictions. Cases decided this late in the Term are usually closely divided, which makes predictions even riskier.

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Washington, D.C.: If O'Connor or Rehnquist retires this term, how would they deflect charges that they were taking advantage of a presidency they themselves created, quite dubiously? Would the press hold them accountable for such a shameless move? Is not the only honorable thing to do to wait until another election is held to retire?

Michael Gerhardt: I doubt either would address the charges you mention. It would be left for the President and his supporters to respond. It is not at all unusual for justices to retire at a time when it gives a president from the party appointing them the opportunity to replace them.

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Washington, D.C.: The DC Court of appeals ruled yesterday that the government can keep secret the identities of Detainees'(on national security grounds). It appears likely that this case will be appealed to the Supreme court. Do you think they will consider it? Any opinion of how they would rule?

Michael Gerhardt: I am usually reluctant to make predictions, but here it is probably safe to do so. The chances are good the case will be appealed, but chances are the high Court will either duck it or uphold the policy (because of its traditional deference to authorities on matters of national security).

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Chicago, Ill.: When I was in law school in the mid-1990s, overlapping Clinton's first and second terms, the conventional wisdom at school was that Rehnquist was just waiting for a Republican to take the White House so he and his bad back could retire. Yet of course the political landscape has changed, but he's still there. Is Rehnquist going to step down? Would Bush try to replace him with somebody from the far right? And if Rehnquist does step down, does he have to hurry -- how long could the Democrats stall any confirmation process in the hopes of winning the 2004 election? Thanks.

Michael Gerhardt: I have to confess I have never bought this "conventional wisdom." While I am sure the Chief Justice would (eventually) do as you say and retire when there is a Republican president in office, I am not sure he is in a hurry to leave the Court. He is just a few years away from setting the record for the longest serving justice in history. He thus has an incentive to stay, and is relatively healthy for a man in his late 70s. As for how long Democrats could stall a nomination, I expect the answer is not long: Republicans control the Senate and no doubt would move fast to get the nominee confirmed. The only tactic available to Democrats opposed is the filibuster, which is risky on such a high-profile office.

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Mt. Lebanon, Pa.: Does anyone in the judiciary really understand and respect the provisions of the U.S. Constitution? It appears from the newspapers that jurists use it when it humbly conforms to their beliefs and agenda but otherwise it's open season on this fine old institution. Isn't it high time to remove it from these drive-by shooting situations and adopt, honor, and administer the Constitution "as it's written" or finally and completely relegate it to the old curiosity shop and forget it entirely? Justice and its client the American people aren't served by wink and nod judicial decisions of any philosophical bent. Thanks much.

Michael Gerhardt: Your question raises the validity (and relevance) of social science studies that show what you suggest -- judges and justices either directly vote their policy preferences or manipulate "the law" to implement their policy preferences. Legal scholars, by and large, reject these empirical studies; they argue that judicial decision-making does not lend itself to empirical analysis and that most, but maybe not all, cases turn on differences of opinion about legal variables. I leave it to you as to which perspective you think is right.

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Harrisburg, Pa.: Do you have any thoughts on the speculation that Dick Cheney, as Senate President, will rule that the Senate must vote on all judicial nominations, a ruling that could be upheld by a majority vote and thus break the ability of Democrats to filibuster judicial nominations? How might this change the dynamics of selecting judges and Justices?

Michael Gerhardt: This is a good question. At present, the Senate Majority Leader wants the full Senate to consider his proposal to amend the Senate rules effectively to disallow obstructive filibusters against judicial nominees. Its success turns on whether a simple majority is empowered to amend the Senate rules. The rules require a super-majority to amend the cloture rule (Rule XXII), but the Majority Leader and probably the Vice-President consider that rule to be unconstitutional. Nevertheless, the rules of the Senate have never been amended without following the rules of the Senate, so if the Majority Leader prevails and a simple majority backs his change you can expect thermo-nuclear war to break out in the Senate. The institution will implode.

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Fairfax, Va.: Relative to the Texas sodomy statute challenge, do you believe the state has a compelling interest in regulating and monitoring private consensual homosexual sexual activity and not heterosexual? What would that interest be?

Michael Gerhardt: One interesting thing about this case is that it is that the State may have trouble coming up with a justification that would satisfy more deferential tests. In oral argument, several justices expressed skepticism over the State's reasons for criminalizing homosexual sodomy. Presumably, the State is trying to punish what it regards as deviancy (though there is no credible evidence before the Court that it is) or that criminalizing homosexual acts somehow protects traditional marriage. I suspect the Court will not be persuaded that these are credible justifications and instead rule as it did in Evans that animus, more than anything else, is behind the law.

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Virginia: Do you know whether the Rehabilitation Act of 1973 and/or the ADA law of 1990 apply to the Supreme Court?

Michael Gerhardt: The answer is no, they do not apply to the Court.

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Silver Spring, Md.: Any chance the Court will remand the McCain-Finegold case to the lower court for reconsideration in light of the new decision it just issued on campaign financing?

Michael Gerhardt: I do not think so. The issues in these cases are not quite the same, and McCain-Feingold raises many critical questions not answered in the other case.

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Washington, D.C.: What do you think the ruling will be in the Texas sodomy case? With Canada on the verge of legalizing same-sex marriage, it seems fairly amazing that we still criminalize same-sex relations. A lot has changed since the last gay-related ruling in 1986. Will changing social attitudes affect the Supreme Court decision?

Michael Gerhardt: As an earlier reply indicated, I am guessing the Court will strike it down. Having said this, I would hasten to note the Court held in Bowers v. Hardwick that there is no constitutional right to engage in homosexual sodomy. I see no chance to overrule Bowers, so this case will be played out on equal protection grounds.

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Gay Rights: I have a question not about Lawrence v. Texas, the homosexual sodomy case heard a few months ago, but rather on a similar case which I heard a buzz about but which died. It had to do with the punishments for statutory rape, I think: An adult male who engages in sex with an underage female gets a certain sentence, but an adult male (say, 18 years old) who has sex with an underage male (say, 17 years old) gets a punishment some 30 times heavier than the heterosexual act gets. My understanding was that cert was pending. Did the Court ever move on this? Or am I just completely off base?

Michael Gerhardt: Sorry that I am not familiar with the status of the case to which you refer.

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Los Angeles, Calif.: Did Thurgood Marshall do our nation a disservice by retiring with Bush 41 in office? Surely the nomination of Clarence Thomas is a low spot in American history as it relates to the continuing struggles of minorities, as Thomas is obviously a contrarian kook of no small order. I shutter at the memory of Bush 41's sly grin when describing Thomas as an inspiration and model for black Americans. Your thoughts?

Michael Gerhardt: I do not think Justice Marshall did the nation a disservice by allowing President Bush to nominate his successor. Indeed, it is interesting to note that while many may have chided the late justice for being partisan he did not exit the Court at all in a partisan fashion. Few justices would choose to allow a president from a different party to appoint their successors. I should also note that Justice Marshall left the Court for health reasons and died not long thereafter. I doubt his family would have let him stay longer, and not sure he had the fortitude to stay longer than he did.

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Arlington, Va.: When do you expect the anti-sodomy ruling -- and if struck down, would that apply to other states' laws as well?

Michael Gerhardt: Well, the end of the Term is approaching. Traditionally, it occurs in late June, so I would imagine we are just days away.

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Washington, D.C.: How would you characterize the role of the Supreme Court and how it has changed from what the founding father's envisioned?

Michael Gerhardt: The role of the Supreme Court has been to "interpret" the law or, in Chief Justice Marshall's grand phrasing, to "say what the law is." The critical power exercised by the Court is that of judicial review, which entails assessing the constitutionality of laws or actions by the other branches of government or the states. Over time, judicial review has been increasingly exercised. While the numbers of cases decided by the Court is declining, the expansion of judicial review is unprecedented. It is hard to imagine what issues the Court would not decide. No doubt, this is a function to some extent of our society's becoming more litigious, but so too have the other branches. In the 19th century, some decisions would not have been taken to the courts; however, today there are few issues that people do not attempt to bring before the courts.

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Virginia: The Rehabilitation Act of 1973 and the ADA law of 1990 both apply to Congress from the Congressional Accountability Act. And Congress and the courts are the recipients of federal financial assistance.

Michael Gerhardt: Yes, but the justices are immune from any actions they take in the course of performing their duties. So, it becomes a practical impossibility to get relief from them. I expect some operations within the building do fall under the acts, but none that go to the heart of what the justices do.

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Conway, Ark.: Have we passed beyond the time when non-judges are considered qualified for the Supreme Court? Could a politician or lawyer stand a chance of confirmation?

Michael Gerhardt: I think we are well passed the time when non-judges would be considered qualified for the Court. A politician, who is a lawyer, would probably stand a good chance of being confirmed. If, for example, the President nominated Arlen Specter, for instance, I imagine he would be easily confirmed. It has become increasingly rare, though, for such people to be nominated. The norm in recent years has been to opt for lower-court judges; hence, the increased activity within the Senate over the President's choices for lower court judgeships.

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Virginia: Well, how can the judges preach about the ADA when they don't practice it?

Michael Gerhardt: It is not the only thing about which they or others "preach" without having to follow it. The President, too, does not have to follow the law, and I expect few would want him to do so. Most people would probably allow him to make appointments based on whatever considerations he preferred and then to hold accountable for those choices. As for the Court, it is not bound by employment discrimination laws and more than a few stories have been written about how hiring practices within different chambers do not comply with those prohibitions.

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Alexandria, Va.: How much of the current fight on the Hill regarding Pickering has to do with laying the groundwork for possible future Supreme Court fights? Care to share your thoughts on Judge Pickering?

Michael Gerhardt: The fight over Pickering is less about concerns over a future Supreme Court appointment than about concerns with his record as a district judge, particularly in a cross-burning case. The battles over Estrada and Owen are being waged, no doubt, with the future of the Court in mind. So, those battles are more complex. As for my opinion about Pickering, I personally have not studied his record in detail and thus do not feel competent to offer a judgment about whether opposition is well grounded or not.

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Arlington, Va.: What have been the most surprising decisions so far this term?

Michael Gerhardt: I imagine the ones not yet decided will be the most surprising when all is said and done. In the meantime, I was rather surprised by the cross-burning case, in which the Court recognized the act of cross-burning as uniquely intimidating and thus not protected by the First Amendment. This is hard to square with an earlier opinion suggesting that burning crosses could be protected under certain circumstances.

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Washington, D.C.: Can you give us your take on this motion filed in Texas to reconsider the decision in Roe v. Wade? Where is that likely to go and what kind of an impact could it have? Is this an unusual occurrence?

Michael Gerhardt: This is unusual. It is a motion by the plaintiff in Roe to have the Court reconsider her case. I suspect not a lot will come about in the courts (as opposed to the media). Her "harm" is rather speculative, and the dispute has been long settled. Of course, the justices retain the discretion to rehear a case whenever they think a case before them justifies it. So, her action might be more significant as an impetus to litigate some abortion restrictions to allow for a Supreme Court appeal in which the Court might overturn Roe. A lot of things have to fall into place for that to happen, and I suspect the justices are not eager to get back into that fray without some changes in personnel.

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Virginia: The President is required by Section 501 of the Rehab Act of 1973 to have an affirmative action program for all agencies. The ADA banned affirmative action programs for the private sector and local and state governments.

Michael Gerhardt: Yes, I know. I was referring to whether it required something from him personally. It does not. His primary appointments are governed by the Appointments Clause, and the Executive Office of the President is usually governed by different standards.

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Washington, D.C.: Were you surprised by Justice Rehnquist's apparent retreat from his heretofore staunchly federalist viewpoint in the Hibbs case? How do you account for this apparent shift in his support for states' rights?

Michael Gerhardt: It's an interesting question. A lot of people were surprised, I think. One plausible answer is that he takes a strong stand in favor of judicial supremacy in construing the Constitution. Another is that perhaps as Chief Justice sometimes he has had to moderate his personal views in favor of others he might consider to be more supportive of the long-term interests of the institution of the Court.

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Michael Gerhardt: I am about to sign off, but before I do I wanted to remind everyone that many of this Term's most significant cases have yet to be decided. They include not only the homosexual sodomy case to which we referred but also the affirmative action case involving the University of Michigan. I cannot predict these cases, but I will predict much of what we remember about this Term will probably be based on them.

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Tupelo, Miss.:
If President Bush refuses to "consult" with Democratic senators in the event of a Supreme Court vacancy, what are the chances any nomination would be tied up with a filibuster for months, perhaps forcing the president to withdraw an objectionable nominee?

Michael Gerhardt: I appreciate the question, which I will make my last for today. Chances are good the President will not consult with Democrats over his selection; he has not done so for his other judicial nominations, and I do not think he wants to appear weak or indecisive in such meetings. The failure to consult will no doubt rubbed the Democrats the wrong way, but the critical thing will be which person he nominates. Some Democrats will probably think of the filibuster, but I think it is a red herring. This will be a high-profile event, and the Democrats will be uneasy to risk public ire in such closely watched circumstances. Moreover, the more problems the Democrats have with a nomination the more incentive they have for Republicans to vote on it. Get everybody on the record, which would then be there to use in the next election.

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washingtonpost.com:

That wraps up today's show. Thanks to everyone who joined the discussion.

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