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Holding Court with Joan Biskupic

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Friday, January 14, 2000

This week, the justices on the Supreme Court heard two of the most controversial cases of the term – cases dealing with the Violence Against Women Act and the rights of grandparents to visit their grandchildren over the objections of the children's parents. The cases speak to the issue of federal vs. states' rights and the rights of the individual, both issues closely identified with the Rehnquist court. In addition, the court handed down a key decision on the subject of privacy, ruling that states may not sell citizens' drivers' license information.

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: What a week. Forget AOL and Time Warner. The nation's highest court had a banner week of rulings and oral arguments. Grandparents' rights and drivers' license privacy got the most attention. But we also had an important decision barring state workers from suing their public employers for age discrimination. It was an interesting opinion by the court, continuing its effort to curtail Congress, and, by its language, minimizing the consequences of age bias in America. So let's get started.


Gadsden, Ala.: How long will it take for a decision on grandparents rights? What would be the earliest source for finding their decision?
Thank You
Paul Bunton

Joan Biskupic: This is the case that will determine whether states can let relatives ask a judge to order visiting rights with a child, over the parent's objection. Because this is fairly new territory for the justices, I wouldn't expect a ruling before May. How can you find out about it? I'm sure it will be all over the news that day. One thing you might do in advance is call the court (202-479-3000) for its schedule of when the justices are in session – that will at least help you narrow down the days that a decision might be issued. The court's schedule is fluid in May and June (the big decision months); but in May, they usually hand down their opinions on Mondays.


Blue Springs, Mo.: Historically speaking, do "preliminary" decisions usually predict final decisions made by the court? For instance, CNN is reporting that the court will make a "preliminary decision" in the case of Troxel v. Granville on Friday; should this decision be seen as indicative of how the court will rule in June, minus the longer opinions-dissents? Or should it simply be regarded as the justices original, non-researched thoughts on the matter?

Stephanie O.

Joan Biskupic: Right now, as we speak, the justices are in their Friday closed-door conference. And they are indeed taking a preliminary vote on how to decide the parents' rights case. After that vote, the chief justice (or the most senior justice on the winning side) will assign the opinion. Other justices will write concurring and dissenting opinions. Drafts of those opinions will be circulated during upcoming weeks. Votes and legal reasoning might shift. This is all done in secret; we won't be told of today's vote. But, usually the way that they vote in conference is the way it comes out several months later in the ruling. This is a tough case, so maybe there'll be a lot of second-guessing and maneuvering. We can only speculate, dream about it.


Washington, D.C.: How do you think Congress will react to the Supreme Court's recent line of decisions supporting the founders' concept of our federal government as having only those "limited" powers enumerated in the Constitution? Does it mean that the Commerce Clause really means commerce?

Joan Biskupic: Your question is prompted by this week's ruling that state workers who were discriminated against because of their age cannot sue under federal law – another in this court's effort to rein in Congress in favor of the states. CONGRESS itself has been pretty silent on these decisions dating to the early 1990s. Last term, after a series striking down parts of three federal laws, Sen. Arlen Specter tried to rouse his colleagues about "this serious situation." But he got few takers. Congress is still in recess right now – maybe when members return we'll see some agitation. I hope we do. Specter is right: this is important stuff.


Valley Center, Kan.: Grandparent's visitation rights – A law is only as good as its enforceability.

If the primary-care parents do not allow, encourage or even allow grandparents (I was in this situation) to see or hold grandchildren – how would a court distant from the situation cause anything but more strain on family relations?

If enacted, would there be guidelines (hopefully, which fall outside of the norm) when courts could address the issues (to prevent nuisance claims and drain our court resources). Then, would an ombudsman/mediator type intervention come into the picture? If so, who would provide the funding for such a program?

What proof would a grandparent be required to provide to show just cause why they should be allowed access to the formative years of such a precious part of our society?

Our main interest is the well being of the child. Even with the pain I suffered when alienated due to an adverse relationship with a daughter's husband, I believe beyond any doubt in parental rights.

But, in this same vein, I also believe heritage is a necessary ingredient in the well being of a healthy society rooted in the whole of the family cycle which start with parental care, responsibility and rights. These rights, I feel, must be protected at all costs even if it causes grandparental discomfort.

washingtonpost.com: Joan, can you talk a little bit about how the grandparents' rights case this week was argued? Did the lawyers express sentiments similar to these?

Joan Biskupic: This is an emotional case, and the justices took it all very seriously. They seemed most concerned about a parent's right to raise her children as she desires and to decide who they visit with. It wasn't that the justices weren't mindful of the important role grandparents and other relatives play in a child's life (six of them are grandparents themselves and Clarence Thomas, who was reared by his grandparents, is now taking care of a young great-nephew), but they emphasized the constitutional tradition of letting parents decide these things. Several of the justices worried about distant relatives, social workers, former foster parents, "anyone coming in off the street," getting a judge to consider visitation. They seemed worried about the financial costs to a parent who had to defend himself in court. They seemed worried about a court, rather than a parent, deciding what's in a child's best interest. BUT, I should mention that they all were aware of how broadly written the Washington state statute is – allowing anyone, at anytime to petition for visiting rights.

..... FINALLY, in response to the question from Kansas, all those particulars about enforceability would have to be worked out within state legislatures and local courts – once the justices themselves rule on the broad constitutional dilemmas here.


Arlington, Va.: The recent decision allowing police to stop a person merely for fleeing at their approach has me confused. The media reported that state laws forbidding such action by police would be overturned. Does the Supreme Court decision actually mandate that states give police authority to stop people for questioning because they run, or simply allow such action if state law does not prohibit it?

Joan Biskupic: I can understand your confusion. The justices didn't offer any clear guidance, and a lot depends on what happens on the streets and how police departments use the ruling. The court said an officer can use the fact that someone ran at the sight of the uniform to justify stopping and frisking him. BUT it also refused to adopt a blanket rule that says ANY TIME someone runs he can be stopped. The justices said when someone flees it's highly "suggestive" of wrongdoing (a scary thought to many racial minorities who believe they're unjustly targeted by police). BUT the court also said an officer still has to consider all the circumstances of the scene: Is it a high-crime area? Did the guy appear to be carrying guns or drugs? At bottom, it seems that the justices expanded a 1968 ruling that said when police are suspicious of an individual but lack specific grounds to believe a crime has occurred, officers have to consider the "totality of the circumstances" in considering whether a stop is justified. They didn't break any new ground on the law – but they gave cops more leeway on the streets.


Fort Wayne, Ind.: In your answer regarding the assignment of Paul Cassell to argue the Dickenson case, you remarked that the administration would argue that the law (18 USC 3501) should never have been passed. In other articles, it has been said that the law has "never" been enforced. Didn't the court rule that the Nixon administration HAD to spend money for reasons Congress legislated and not withhold it, i.e., the administration had to "enforce" the law. If so, how can any administration ignore enforcement of laws? Is this (18 USC 3501) just a situation where "nobody" complained until now, so the issue never arose?

Joan Biskupic: This is a good question, referring to the 1966 Miranda ruling that says police must tell suspects of their right to remain silent, that anything they can can be used against them, etc.... and the 1968 law Congress passed trying to overturn it. Yes, in some cases, the executive branch must spend the money Congress appropriates. BUT, the executive doesn't have to enforce a law that may be unconstitutional. The issue in the case is whether Congress even had the authority to pass a law aimed at reversing a constitutionally grounded opinion. Also, there are practical realities here: the Miranda rights are so much a part of cop culture and workable (according to Janet Reno) that no administration had any reason to try to buck the 1966 ruling and favor the 1968 law.


Fredericksburg, Va.: What are the oaths of office for the associate justices and Chief Justice?

Joan Biskupic: Every justice takes two oaths – a constitutional oath and a judicial oath. The first one requires all federal employees to pledge to support the Constitution; the second one is part of the Judiciary Act of 1789.


Petersburg, Alaska: Dear Ms. Biskupic:

Thank you for your two recent articles on the grandparents' rights case (Troxel v. Granville). Living so far from the court, I appreciate the detailed reporting and insight that your articles are providing.

Question: How did the Troxel case get to the U.S. Supreme Court? Did the Washington court strike down the statute on a theory that it violates the due process clause of the federal constitution? Or did the statute merely offend the state constitution? (Your Sunday article mentioned constitutional privacy interests but did not specify whether under federal or state law?)

One piece of information that is always of interest in a case that comes to the Supreme Court from a state court is the legal theory that either: (a) implicates a federal statute or federal constitutional right or (b) deserves review of a state court decision in the federal court.

When you are reporting on cases like this that come to the Supreme Court from the state courts (and most come from the lower federal courts), it would be helpful to your readers to know how it got there. Thanks for considering this suggestion.

Fred Triem

Joan Biskupic: Hello, Alaska, and thanks for your thoughts. The Washington Supreme Court struck down the law based on the FEDERAL Constitution, saying it violated parents' liberty and privacy guarantees embodied in the Fourteenth Amendment. The state court, referring to a line of U.S. Supreme Court rulings, said the Washington visitation law conflicted with parents' right to rear their children without state interference. The Washington court said visitation could be imposed only if the child was at some risk of harm.


Birmingham, Ala.: What is the status of the Herdrich case before the court and what do you think will be the court's approach to creation of a free standing action for breach of fiduciary duty?

Joan Biskupic: This case (Pegram v. Herdrich), testing whether HMOs can be sued when physicians' financial incentives allegedly take priority over adequate patient care, is set to be argued Feb. 23. And your question about how the court will approach it ... that's tough. I haven't looked at all the relevant ERISA cases yet and will know more in late February. Stay tuned.


Arlington, Va.: Do you think that the court's two recent unanimous information/privacy decisions, both written by Justice Rehnquist (not exactly a maven of personal liberty), have any relationship to the judiciary's recent decision to make it hard for members of the public and press to obtain judges' financial disclosure forms?

Also, how can any federal judge decide that case (ABP v. U.S.) when they all have a personal interest in the outcome?

Joan Biskupic: Nope, is my answer to your first question. And on the second – for better or for worse – judges always have decided cases involving other judges. It's just how the legal system is set up. I'm not sure what the alternative would be, although I agree that it does make you worry about conflicts of interest.


Raleigh, N.C.: Based on your observation of the Brzonkala argument, what is your impression of how O'Connor and Kennedy will vote in that case? Please provide the bases for your impression (e.g., comments by them at the argument). Thank you.

Joan Biskupic: Both Sandra Day O'Connor and Anthony Kennedy seemed skeptical of the law allowing women who have been raped to sue their assailants for damages. The key issue is whether Congress was right to get involved in a traditionally state/local concern of criminal law. Kennedy worried that under the Justice Department's theory Congress could write laws governing local murders and robberies. At one point, O'Connor told the solicitor general that his approach – tied to discrimination against women in the legal system – might justify a federal remedy for alimony or child support. Bottom line: it doesn't look good for this provision of the Violence Against Women Act.


Arlington, Va.: On the recent decision by the court which seemed to affirm the right of the feds to prevent drivers' license information from being sold by states, the Attorney General of South Carolina was quoted as saying he didn't have a problem with what Washington was doing just that South Carolina did not favor a one size fits none approach. Is this the same logic that allows them to fly the Confederate flag and could a statute be enacted by Washington to prevent that?

Joan Biskupic: I'll let your comments speak for themselves.


Las Cruces, N.M.: What's in the tea leaves now under the current 11th Amendment jurisprudence for federal civil rights causes of action by individuals against states or state agencies under federal statutes like Title VII, Section 1981, Section 1983, Section 1985, and civil RICO provisions?

Joan Biskupic: This question has to do with the age-discrimination ruling this week and how Congress can overcome states' usual 11th Amendment immunity from being sued in state court – when a state violates a federal anti-discrimination law. Okay, I'll try to make this interesting for the non-lawyers: What's at stake are various federal laws guaranteeing people's civil rights and protecting them from discrimination on all sorts of grounds. (Last week's case involved a law that bars discrimination on the job for people over 40.) What the five-justice majority effectively said is that Congress can override state immunity if a constitutional right (such a protection from bias based on race, sex, national origin) is involved – but that it's a much tougher case if it's a statutory matter, as age was. SO, I don't think the case will affect Title VII (covering sex, race), but it could eventually threatened the Americans with Disabilities Act.


D.C.: Do the justices ever walk into one of their Friday private conferences and say "I have no idea what to do with this case?" With some of the cases I've heard recently – I really couldn't begin to know what the best answer is for the country (I guess that's why I'm not a Supreme Court justice). What happens if one justice can't decide? (Has that ever happened before?)

Joan Biskupic: I would love to be a fly on the wall at conference! Yes, sometimes justices don't know for sure which way they will go ... they'll tentatively give their vote to one side or another, or they'll say they are still working out their views. (I know this only from looking at the papers of former justices.) I don't think it happens very often – as a group they tend to be a decisive bunch, and what they're expressing on Fridays is the bottom-line vote, not a rock-solid legal reasoning... so that can evolve.


Henderson, Nev.: How does the court decide which cases it will hear first each week, and which cases will be heard each day? In other words, do the justices set the schedule of cases in their meetings as to which will be heard first, second, etc.?

Joan Biskupic: It's a combination of things. They generally slot them for oral arguments in the order that they were accepted for review. They also tend to schedule the bigger cases for Tuesdays and Wednesdays, rather than Mondays – the day they also issue their massive "orders" lists. They also tend to related topics, for example, we have a pair of police-search cases coming together in February.


Joan Biskupic: There are still lots of questions pending, but that's it for today. The hour's up. But I'll save your questions and answer as many as I can next Friday. In the meantime, thanks to all who joined in or watched. ... Next week, one of the biggest oral arguments involves a Colorado law restricting how close protesters can get to health clinics that perform abortions. Also, we're expecting to hear as soon as this afternoon what new cases the justices are going to add for this term. Among the important appeals pending are those involving Midwestern laws banning so-called partial birth abortions and a ruling from New Jersey state court forbidding the Boy Scouts to exclude gays.


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