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Holding Court with Joan Biskupic

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Friday, January 21, 2000

This week, the justices of the Supreme Court heard oral arguments on yet another controversial case a Colorado law restricting how close protesters can get to clinics that perform abortions. In addition, the court recently announced it would take up two huge cases: a dispute over whether states can ban a certain type of late-term abortions, and whether the Boy Scouts can exclude gays.

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: For those of you who are joining us from beyond the Beltway, it's freezing here. The town pretty much shut down yesterday because of snow and today, it's an icy bluster. But the Supreme Court is still in, and we expect that this afternoon the justices will announce the remaining cases accepted for oral arguments this term. ... Last Friday afternoon, they added big abortion and gay rights cases. We'll be talking about those and other court developments today. But first, as promised last week, we'll answer a couple of the remaining questions. These first three are representative of some of the ones left pending.

Blue Springs, Mo.: Given the way the oral arguments went in the Troxel v. Granville case, do you have a feeling one way or the other on how the justices will rule? It certainly seemed to be going towards the parents' rights, although with some leniency for grandparents. Also, doesn't the U.S. Defense of Marriage Act define the "family," I believe, as husband, wife and possibly children, which seems to be one of the main contingencies of the grandparents, that they are part of the "family" and therefore the Fourteenth Amendment does not apply?

Joan Biskupic: It's always hard to say for certain, because we don't know what the justices thought when they went back to the written briefs or began to consider what their legal reasoning should be. But I think the justices are inclined to favor the mother, who argued that grandparents and other third parties shouldn't be able to go to court at any time to get visitation rights. ... Regarding your question about DOMA: that law only defined marriage, not what a family is. A definition of "family" certainly would be hard today.... And the Supreme Court has earlier ruled that the 14th Amendment liberty guarantees for family are not necessarily confined to the nuclear family.

Chattanooga, Tenn.: Have you seen the opinion on age discrimination laws applying to state employees? Do you know if it addresses the rights of employees of cities or counties, or if it is just limited to state employees?

Joan Biskupic: You're referring to last week's ruling that state workers who were discriminated against because of their age couldn't sue their state employers under federal law. No, this wouldn't apply to county workers. They could still sue under age discrimination law. The case was specifically focused on whether the usual state immunity from federal lawsuit had been lifted by the Age Discrimination in Employment Act, which protects workers 40 and older.

Harrisonburg, Va.: In addition to the states' inability to sell our drivers' license information, what else is being done in government to protect our identity?

Joan Biskupic: This question refers to the Court's decision that Congress was within its power when it barred states from disclosing the personal information drivers provide to get a license. Congress has been looking at all sorts of ways to protect privacy in this Internet age. Lawmakers are concerned about serious stalking and fraud, as well as the nuisances that arise from so much personal information being out there, making us all more vulnerable to marketeers. Our Business section has been tracking a lot of the legislative developments, and I'm told that Sen. Patrick Leahy and House Rep. Jim Leach have been among the most active members of Congress in this area. You might check with their offices.

Northwest: I'm not a lawyer, so please forgive my question...The Vermont gay-rights case involves the Vermont constitution and a ruling by the Vermont Supreme Court. So when the U.S. Supreme Court takes on the case, are they ruling on whether or not the Vermont State Constitution is "constitutional" in regards to the U.S. Constitution? I'm a little confused on how this all works.

Joan Biskupic: This is a good question, and I can understand why you're confused. First, the gay-rights case the justices took last week was from New Jersey and involved a mixed state-and-federal law question about whether the Boy Scouts have to admit members and troop leaders who are gay. BUT, the Vermont marriage case you mention was based only on state law (whether state constitution forbids discrimination against same-sex couples) ... so that case would never be taken up by the U.S. Supreme Court. It involved only an interpretation of state law and the Vermont Supreme Court has the last word on that. ... And actually, if I'm remembering the case right, while the state court said its constitution forbids discrimination against same-sex couples for most of the benefits of marriage, it essentially threw the case back to the state legislature to decide core questions about whether gay men and lesbians can "marry" under state law.

Washington, D.C.: In the last couple weeks, the Supreme Court has taken on it's most controversial caseload in ages. Is there any particular reason they're taking on all of these now or is it coincidence that there are so many contentious issues coming up through the appeals process?

Joan Biskupic: Mostly it's a coincidence. There have been building conflicts in the circuit courts, notably on the constitutionality of "partial birth" abortion bans. And the appeal in the New Jersey Boy Scouts case came this month because of the timing of the state court decision. ... But, the current phenomenon also arises from these justices' particular interests: they are definitely taking more states' rights cases, for example.

washingtonpost.com: Out on the campaign trail, GOP candidates are talking a lot about a litmus test for judges -- that they will appoint only anti-Roe judges. George W. Bush said he thought Roe was "a stretch." Not that any of the justices aren't used to people disagreeing with them, but is there any buzz or reaction to these declarations? How about the retirement speculation? Does it take a toll on the justices, knowing that some people seem to be just waiting for them to step down?

Joan Biskupic: These justices know -- given what's happened at past confirmations -- that any retirement will set off a highly politicized chain-of-events. I don't expect anyone to retire until after the elections. I've heard no buzz from the justices about what they think about some of the comments the presidential candidates have made. Generally, they probably believe, as most of use do, that the GOP candidates generally have complaints about Roe v. Wade, and that the Democratic candidates generally support it. BUT, a president's appointment to the court doesn't always carry out the political party's wishes. In 1992, when the justices narrowly affirmed Roe v. Wade and abortion rights, it was with the votes of David H. Souter (Bush appointee) and Sandra Day O'Connor and Anthony Kennedy (Reagan appointees).

Fairfax, Va.: I watched the oral arguments in the Colorado abortion protest case. I have a question about oral argument techniques. It seemed to me that the attorney for the abortion protestors was well-prepared and handled the difficult questions well. In contrast, it seemed to me that the attorney for the State of Colorado and the attorney from the Solicitor General's office were evasive and seemed caught off-guard by many questions. I was surprised that the government lawyers did so poorly. Is that usual? Do you frequently see poor performances at the Supreme Court? Don't they realize they are playing in the Super Bowl of law?

Joan Biskupic: Excellent question. You'd be surprised how many experienced lawyers have trouble when they come up before these nine. The Colorado solicitor general, Michael McLachlan, indeed seemed thrown by some of the questions. Jay Sekulow, who argued for the protestors, has been before the justices before, so he might have anticipated the rapid-fire questions and unusual hypotheticals. I presume McLachlan did a couple of moot courts and really knew his case; but he clearly didn't anticipate some of the justices' hypos and then seemed to have trouble recovering when the line of questioning shifted. But, I have to say, he wasn't one of the worst we've seen up there. Overall, the level of advocacy is uneven. Some lawyers do bomb. And some are so good it takes your breath away.

Newton, Mass.: The Supreme Court announced a recess from Jan. 24-Feb. 22. Does this mean that no regular orders concerning writs of certiorari or decisions will be handed down during this time period?

Joan Biskupic: Yep, after next Monday's orders list, they're off until Feb. 22. No decisions. But there may be an emergency order or two in a death penalty case.

Owings Mills, Md.: This week, the Supreme Court heard arguments about Colorado's clinic access law. Why did the Court, also this week, deny cert in a similar case from South Carolina? Are the two cases much different? Would the Court review its cert denial after ruling on the Colorado case? Also, why didn't Rehnquist, a Roe opponent, join the Scalia-Thomas dissent to the cert denial? Is it taboo for the chief to dissent on cert denials?

Joan Biskupic: The South Carolina case didn't involve a law specifically restricting protesters at medical clinics, as the Colorado dispute does. (In fact, if I'm remembering that one correctly, it had to do with a South Carolina court's interpretation of general criminal conspiracy law, which happened to be applied in an abortion protest case.) Whatever the situation there, I can tell you that once an appeal is denied, the justices won't revisit it even if they happen to rule in a case on a related subject...And about Rehnquist not joining Scalia and Thomas in the dissent from denial of the South Carolina case: he has been much more willing to allow restrictions on abortion protesters than those two. In fact, the chief himself has authored much of the court's reasoning on why limits on protesters are indeed constitutional.

Fairfax, Va.: Is there a method to the way the justices determine who writes the decisions? Can someone look at which justices authored opinions in say, some of the cases heard in October or November and already handed down and then figure out who the authors are of the cases not yet released that were heard in October or November? Or is there no rhyme or reason to the way the opinion-writing assignments are handed out? I hope you can understand my question.

Joan Biskupic: This is a great question. Yes, there is a method to it all. The chief tries to spread the opinions around and to make sure that each justice gets a decent amount of majority opinions, within the limits, of course, of a divided court and some justices being in dissent more than others. We reporters are always trying to figure out which justice is writing a big opinion from an early oral argument. But here's the tricky part: if the case was decided 5-4 or 6-3 (and, of course, we don't know the vote until the case is handed down), it might not be so easy to predict who's writing what, based on which justices have yet to author opinions from the early sittings. But we are always trying to guess.

Princeton, Idaho: Do you think the 'case or controversy' doctrine-interpretation has outlived its usefulness? Should the Supreme Court begin issuing limited advisory opinions to save us all the years and millions of dollars this glacial process of review takes? Can't a 'controversy' arise outside a specific set of facts? Wouldn't many of the questions surrounding the abortion issue have been settled years ago, if advisory opinions were used instead of waitng for just the right case, just the right issue, the best lawyers.

Joan Biskupic: The Constitution says the justices will settle only cases and controversies...so they couldn't begin offering "advisory opinions" without a constitutional amendment. And I think the system works pretty well this way.

washingtonpost.com: Given the Rehnquist court's hesitance to take on so-called "big issues," were you surprised when they decided to take both the late-term abortion case and the gay Boy Scouts case? Was it the way these cases were framed?

Joan Biskupic: I was surprised at the timing. Under one scenario, they could have held off on the abortion case until next term. The justices took a case from the 8th Circuit, but a related dispute from the 7th Circuit is also on its way up. All the papers for that case weren't quite in last week, and I thought the court might have waited until both lower court rulings (which were in conflict on the constitutionality of "partial birth" bans) were before the justices...And on the boy scout case, I thought there was a 50-50 chance they would accept it. It takes four votes to hear a case (five to decide it), and clearly for both of these hot disputes, four of the justices were raring to go.

Joan Biskupic: That's it for today. Thanks to all who participated. Come back next Friday, when we'll begin a series of thematic February discussions on some of the hottest cases of the term, including abortion, gay rights and big search-and-seizure disputes.

washingtonpost.com: P.S. We just found out with all the snow yesterday some lighthearted folks on Capitol Hill built nine snowpeople on the Supreme Court grounds. All that's missing are the gold strips for the big guy in the center.

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