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Holding Court with Joan Biskupic

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Friday, January 7, 2000

Each institution of government has its own customs and culture, and the Supreme Court is no exception. The first "Holding Court" session of the new millennium will look at its customs, traditions and ceremonies, from dress codes and formalities to the court Christmas tree.

In addition, the court opens the millennium with two of the biggest cases of this term: the dispute over grandparents' rights and review of the Violence Against Women Act. We will take a closer look at these cases and the new docket as well.

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. EST. The transcript follows:

Joan Biskupic: Happy New Year! The Supreme Court has taken down its huge Christmas tree, but we're still going to talk today about that (the Chief got a new train for underneath it!) and the justices' other traditions, as well as the big cases coming up for oral argument this week.

Lubbock, Tex.: Regarding the upcoming arguments on the Violence Against Women Act, one possible line of argument for upholding the Act is as follows: Violence against women has come to be viewed, by some scholars at least, as a civil rights issue; violence and other forms of harassment are seen as impairing women's opportunity to participate equally in society. Accepting these premises, the Violence Against Women Act could then be upheld under Section 5 of the 14th Amendment, giving Congress the "power to enforce, by appropriate legislation, the provisions of this article." Do you expect this argument to be made, at least as part of the government's case, and do you think it would be effective?

Joan Biskupic: The federal law you're talking about lets women sue their attackers for money damages. And I definitely expect that argument to come up Tuesday. The federal government is arguing that the law is valid under both Congress's power to regulate interstate commerce (for example, women's interest in moving from state to state, job to job) AND its ability to enforce civil rights. One of the key points on the latter argument is that the feds needed to step in to ensure that "gender-motivated" violence was seriously punished. The Justice Department has told the court that rape and other such crimes had been treated less seriously in the states than other violent crimes. That's why what we think of as a local crime became a federal one.

Washington, D.C.: Is is possible for the public to observe a session of the Supreme Court? If so, what is the procedure?

Joan Biskupic: First, get up early.

Next week is a big one for oral arguments, and I expect people to be lining up on the marble steps at dawn. And even then, some folks won't get in. The Violence Against Women Act case, on Tuesday, is expected to draw a capacity crowd. And I especially think there will be plenty of people left waiting for Wednesday's case testing whether judges can order child visitation for grandparents and other third parties over the objections of a parent. But generally, cases start at 10 a.m. and the police officers start filling the room an hour earlier. By the way, in big cases, the public seating can get down to only a couple dozen seats, because many of the seats tend to get eaten up by other officials who want to see the argument.

Brewster, N.Y.: It appears that the states' rights views of the majority of the court will continue unabated. In Vermont v Stevens argued Nov. 20, 1999, the justices appeared to hold that state governments should be immune from lawsuits under the False Claims Act. Justice Breyer complained that turning qui tam relators loose upon the states looking for technical violations of law seemed to me to be a classic example of ivory tower thinking. Why shouldn't states be held liable as other entities under the FCA if they engage in fraud?

Joan Biskupic: This case was argued last fall, and we haven't gotten a ruling yet. I'm not sure how the court will decide it, but I think many justices (including Breyer) are wary about getting rid of these citizen lawsuits that have long been part of the country's tradition. Regarding your question on whether states should be held liable when they violate the law: they should. But then, the question is really about how they should be responsible. Does the law permit them to be sued by individuals, or does the federal government have to come after them itself?

Towson, Md.: Any idea when Dickerson v. U.S. will be heard?

Joan Biskupic: No date has been set yet. It's likely to be some time in March-April at the latest.

Sidney, Iowa: As a government teacher I point out many of the customs that each branch of the Federal government holds and maintains. One of the more interesting points are the bands that Chief Justice Rehnquist has on his robe. The story I was told was that he saw the bands in a theatrical production and thought it would be nice to wear them on his robe.

Is this a new custom, or an attempt to bring more prestige to the position OR is it an attempt to glamorize himself and the high position that he holds?

Joan Biskupic: It's just Rehnquist's being Rehnquist. You're right that the gold stripes came from a performance: it was Gilbert and Sullivan's "Iolanthe." I actually don't think he was trying to elevate himself or his black gown. Rather, it seemed like more of a whimsical attempt to spruce it up. Strange, I know.

washingtonpost.com: Does the Chief take a lot of ribbing for his fashion choice?

Joan Biskupic: Yes. There have been all sorts of jokes inside and outside the court. Once, when he had to miss a session and Justice Sandra Day O'Connor filled in at the middle seat, court personnel joked about her wanting to add a fifth stripe on each of her sleeves while he was gone. Remember during the impeachment? So many of the cartoons of Rehnquist focused on his sartorial choice.

Richmond, Va.: I don't know if you were going to answer any questions that were about the court's casework, but this question has been on my mind for a while. Do you know why the court has refused so many times to decide the constitutionality of vouchers' use for sectarian schools? Given that Rehnquist and Scalia tend to support their use in religious schools, is it possible all but they wish to avoid such a politically charged controversy?

Joan Biskupic: These big religion cases are always tough, and usually decided by just one vote. I don't think the justices are ready to take it on, they might not even be sure where the majority is. Maybe they're looking for more guidance from the lower courts . . . When they recently agreed to hear a school prayer case, the justices carved away the larger, more controversial question of prayer at graduation and other ceremonies, and said they would look only at invocations at football games.

Arlington, Va.: Bob Woodward said on line earlier in the week that there was something about the air at the Supreme Court that made people live a long time. Mostly that something about the work made them want to hang on. Do you find that to be true and is that phenomenon something gerontologists should study?

washingtonpost.com: Woodward was online on Wednesday.

Joan Biskupic: Indeed, the Chief is 75 and still going strong. John Paul Stevens will be 80 in April. In recent years, many justices have retired in their mid-80s and seemed to have virtually no trouble getting the job done in their last years on the bench. ... The question is, can the air help the health of reporters too?

Washington, D.C.: How do the justices deal with protesters, when there are particularly controversial issues before the court? Are they bothered by them? Is there a specific procedure to deal with protests?

Joan Biskupic: The late Justice Harry Blackmun was often spotted watching the protesters from his second-floor office. But generally, the justices act like they're oblivious to it. No one carrying signs or protesting in other ways is allowed actually on the court plaza and the marble steps. The police keep them back on the sidewalk. In October 1998, 19 people, including NAACP president Kweisi Mfume were arrested for protesting what they called the dearth of minority law clerks hired each term (see story).

Cincinnati, Ohio: Are there any particular customs of the court that you're aware of that have evolved over the years? Have they always prayed before going out to hear oral arguments? Is there a bar they hang out in? Are there other courts in which the justices got along better and socialized more than these?

Joan Biskupic: They all shake hands before beginning a conference or going on the bench. They eat together on oral argument days. They do other things that you'd expect among colleagues, like chipping in for retirement gifts (I found in the papers of the late Thurgood Marshall a memo that went around to all the justices taking up a collection to buy then-retiring Chief Earl Warren a fancy rifle).

About their socializing, there are no enemies in this group – or at least none who are public about it. I think some of them tend to pair off more than others. For example, the Chief and Scalia play poker together. Scalia is also a longtime friend of Ruth Bader Ginsburg.

Cincinnati, Ohio: Because it appears that Justice O'Connor moderates her federalism stance on gender-related issues (VMI, Davis), do you think she will reverse in Bronzkala?

Joan Biskupic: That's a big, important question. In fact, many court watchers believe she could be the swing vote. It will be interesting on Tuesday to see what sorts of questions she asks, where her concerns are. Justice O'Connor is always one of the most talkative at oral arguments, and we'll probably know much more after Tuesday.

Arlington, Va.: What is the status on the late-term abortion debate? If I remember correctly, two different circuit courts of appeals have now issued different rulings on the issue, one finding it unconstitutional and the other allowing the ban. With different interpretations at the circuit level, doesn't the Supreme Court have to take the issue and make a ruling?

Thank you.

Joan Biskupic: First, you should know by now that the court never feels it has to do anything. But you're right that a conflict between the circuit courts at least increases the chances that the justices will believe they need to step in and straighten out the matter. The 8th Circuit struck down so-called partial birth abortion laws, while the 7th Circuit upheld them. The justices are tentatively scheduled to decide by the end of January or by some time in February whether they will take either of the appeals from these Midwestern disputes.

Arlington, Va.: There are a lot of big issues before the court this term, from grandparents' rights, to the Violence Against Women Act, to Miranda, to school prayer. I have a feeling that most of these decisions won't come down until late June, after the nominees for president have been chosen. One of the clearest differences between the two political parties is the people that they would nominate for the judiciary. With three justices possibly retiring before the 2004 election, how will these decisions play in the presidential election?

Joan Biskupic: Your point is right on target. One of the most important legacies of any president is who he puts on the Supreme Court. A presidential term runs just four years. A justice is appointed for life. And think of how many cases are decided by a single vote. This year, we've got big questions pending on campaign finance, tobacco regulation and voting districts, in addition to the ones you mentioned. If the court rules in a way that draws a lot of public criticism, or ends up taking up either of the big abortion appeals, I think it will definitely play into this fall's campaign rhetoric.

Erhart, Md.: How is Ruth Ginsburg's health these days? I know she had been sick for some time.

Joan Biskupic: This question comes up these days almost as often as the one about justices' retirements. Her health seems fine. She's been on the bench every day this term, out speaking, attending social events. I've heard nothing through the grapevine to suggest that she has any serious recurring problems from the colon cancer surgery.

Chicago, Ill.: Joan:

Can you explain a little bit about how the law clerk pooling system works concerning review of cert petitions? Are copies of the petition in each case distributed to all the members of the pool or, instead, to only a randomly selected few members of the pool? Is there only a single recommendation, reached by majority vote of the members of the pool, made on each petition, or are dissenting recommendations also forwarded to the justices? Also, does each law clerk for every justice (except Justice Stevens' clerks) participate in the pool, or is the pool comprised of, say, only one or two law clerks for each justice?

Also, recently you answered a question about the significance of a delay by the Court in ruling upon a cert petition after the petition was considered in conference? But how do you know when any particular petition will be, or was, considered in conference?

Thank you.

Joan Biskupic: Whew! I'll take on the clerks' procedure first: All of the justices except Stevens participate in the "cert pool." He wants his own clerks to personally review all cases. ... Each chamber and all clerks get copies of all petitions. But the clerks in the pool divide up the responsibility for writing up a memo summarizing what's in the petition, what's in the response to it from the other side, and a recommendation on whether the justices should hear the case or not. Any justice or his or her clerks are free to ignore the recommendation or do further research in their own chambers. But this is how most of the petitions that come in are handled.

The justices' conferences are secret, as you know. Not even clerks are allowed in there. So we never know for sure when cases are discussed, but we can tell from the sequence of filings that come in and the past practices of the justices roughly when a case is likely to be discussed at conference.

California: I understand that the number of judges has changed over the years. Who determines their number and why have their been changes anyway? Thanks.

Joan Biskupic: There are nine justices because that was the number set by Congress in 1869. The Constitution said there shall be a "supreme" court but left the details to Congress, which first established the court in 1789 with six justices. Over the years federal lawmakers increased the members to seven, then nine, then 10, back to seven and, finally, to nine in 1869.

Washington, D.C.: In the FDA-tobacco case, I found questions by Supreme Court Chief Justice William H. Rehnquist interesting. Published reports cite Rehnquist challenging Solicitor General Seth Waxman's claim that it was only in the 1990s that the FDA found scientific evidence that cigarettes were harmful and addictive. Why would Rehnquist say this when the tobacco industry just recently released hundreds of thousands of damaging documents pertaining to the health risks of tobacco? Why did he ignore the impact of these new documents? What legal basis does Rehnquist use to ignore the new evidence? [EDITED FOR SPACE]

Joan Biskupic: I think what Rehnquist was trying to get at was how the FDA decides the health hazards of various substances and what it can regulate. He had asked the solicitor general also about earlier Surgeon General reports about the health risks of smoking. And I think his challenge to the federal government is linked to all the years that the FDA may have had other evidence of tobacco's dangers but insisted it didn't have the power to regulate it as a drug.

Joan Biskupic: That's it for today. Thanks to all who participated. Watch for oral arguments next week in the constitutional challenge to the Violence Against Women Act and the case testing whether grandparents can go to court to get visiting rights over the objections of the parents. New studies show that of the 60 million grandparents out there, more than 10 percent take care of grandchildren on a regular basis. Finally, this case could be especially important here in Washington, D.C., which has the highest nationwide rate of children living in their grandparents' house – 19 percent.

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