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Holding Court with Joan Biskupic

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Friday, January 28, 2000

It was another big week at the Supreme Court. The justices endorsed government limits on campaign contributions and opened the door for greater government restrictions on political money - perhaps even so-called soft money. By a 6-3 vote, the justices reaffirmed the principle of Buckley v. Valeo that contribution limits don't hurt free speech and are justified by government's attempt to counteract "the cynical assumption that large donors call the tune." "Holding Court" will talk this Friday about that ruling, the justices' continuing effort to take up cases that could give more power to the states (at Washington's expense), and other court news.

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: Welcome. Well, the big court news today is how all nine justices skipped last night's State of the Union speech. A court official said they had various excuses: illnesses, travel problems, etc. But it was strange to watch the annual event without any of the black-robed justices filing in and taking their usual seats in the front row--where they sit stiffly and appear a bit bored. ... But there was substantive news this week, too, as the court endorsed its landmark 1976 case, Buckley v. Valeo, allowing government to limit campaign contributions. As usual, before we get rolling with the new events, we'll pick up one or two questions from last week that were representative of the batch that was leftover at the end of the hour.

Chicago, Ill.: I realize that "fairness" is not a legal concept; however, reading your article on the Weeks decision is disturbing. Is the majority saying it doesn't make any difference if a jury understands, just so the instructions in the abstract are clear? What does this mean in those states where the jury is not aware that life means "life without parole?"

Joan Biskupic: You're referring to the ruling earlier this month upholding the death penalty for Lonnie Weeks, who was convicted of murdering a Virginia state trooper. The question was whether the jury understood its instruction for when it had to give death and when it had the option of life imprisonment. Your point is well taken: the five-justice majority that ruled against Weeks set a low standard for what judges must tell jurors when they say they're confused about the sentencing. Dissenting justices tried to highlight evidence that the jurors were bewildered and that many of them were crying when they announced the death verdict. ... And about your last question, in 1994 the justices ruled that jurors must be told when "life" means life with no chance of parole.

Washington, D.C.: The justices are really shying away from stays of execution, aren't they?

Joan Biskupic: A stay of execution is incredibly rare, although the justices have intervened in a few recent cases, notably from Virginia. In the Lonnie Weeks case I was just talking about, Weeks was within two hours of his lethal injection last September when the justices stayed his execution and said they would consider the case. Of course, in the end, all he got was a few more months on death row. But the court did take one final look at his appeal.

Washington, D.C.: Could you please provide me with some information regarding the case recently argued at the Supreme Court discussing the 1994 Violence Against Women Act? I am thoroughly disappointed by the minimal press attention this very important issue is receiving. I realize the main issue at hand is state v. federal government authority but shouldn't both governments be interested in the safety of ALL American women?

Joan Biskupic: Many of the major papers, including ours, wrote about the oral arguments. Bottom line: the justices appeared ready to strike it down. The provision at issue allows women who've been sexually assaulted to sue their attackers for money damages. The justices' questions suggested they thought Congress had gone too far into state business by passing the provision and taking over a potentially vast area of criminal law. .... The Justice Department, however, would answer your question in the affirmative: yes, both the states and feds should be responsible for fighting violence against women. This federalism case is unusual in that a majority of the states agree and have submitted a brief urging the justices to uphold this part of the Violence Against Women Act.

Milan, Italy: Of course, Supreme Court justices are appointed for life, and they don't have to worry about reelection, or about being popular. But: Do justices worry about being in touch or out of touch with the mood of the country? Thank you.

Joan Biskupic: Thank you Milan, Italy! (Wish we were there.) Even though the justices are appointed for life, they're as human as anyone else. Most of them do worry about being understood and, in turn, they try to understand what's happening in the country. Some of them take pains to explain why they're ruling the way they are, and behind the scenes fret about how something they've written has been criticized in the press. ... The justices actually shouldn't be out-of-touch. They live in a privileged sphere, but in every case numerous groups submit briefs trying to explain how the case touches people in the real-world. In some areas involving contemporary social problems (I'm thinking about recent gay rights and physician-assisted suicide cases), the majority on the Rehnquist Court does seem to be in sync with mainstream America.

Rockville, Md.: Please comment on the Supreme Court's absence from the State of the Union address.

Joan Biskupic: Funny you should ask. My colleague Al Kamen, who does the "In the Loop" government column, just came by my desk, and before I could tell him to scram, he said he was going to do a little item in his column on "Where were the Justices?"
He's on a mad search for Rehnquist, Scalia, O'Connor and Souter. ... The whereabouts for the rest of them are covered. Ginsburg was feeling the effects of radiation (from her cancer surgery last fall), Breyer had the flu, Stevens was with his wife who is recovering from hip surgery, Thomas and Kennedy were on the road. I was very surprised that the chief couldn't get one or two to show up, just so it didn't look like a third-branch slight.

Washington, D.C.: Could you discuss further how the justices came to the decision that campaign contributions do not limit free speech? And, what do you think the reasoning was behind the three dissenting justices?

Joan Biskupic: Good question. This is really an important case, highlighted by all the money in this year's presidential race. The justices in the majority adopted the framework from the 1976 Buckley v. Valeo case that drew a line between campaign contributions and campaign spending, saying the former don't get as much First Amendment protection. In the new case, the majority said government's interest in ensuring public faith in the election process outweighed whatever burden the contribution limits put on a candidate or his/her supporters. ... Dissenters, meanwhile, said the Buckley rationale didn't work. They said contribution limits are an affront to free political speech. In a practical vein, Justice Kennedy also said they don't do the job, that limits actually force political speech into covert channels, as contributors figure out ways to get around limits (for example, with so-called "soft money").

washingtonpost.com: This week's decision on campaign finance law is enormously significant, though not necessarily surprising, since the court upheld campaign finance limits in Buckley v. Valeo. Can you talk about how far this decision will extend, and whether you see the door open now to try to regulate "soft money"? Also, how politicized do you think this decision will become, given two presidential candidates waving the banner of campaign finance reform?

Joan Biskupic: This is a good follow-up question. Will things change in Congress? Will the votes be there to restrict "soft money." The justices have showed that they are not hostile to restrictions on campaign contributions. And their reasoning could apply to "soft money," the large contributions to political parties. But the real question is whether Congress has the political fortitude to pass such legislation, which would then be tested in the courts. The presidential candidates might talk a lot about campaign finance reform, but no one is predicting it will happen soon.

Mt. Rainier Md.: As a woman I'm very interested in promoting laws that protect women. But I'm becoming increasingly inclined to think that the idea of allowing women to sue in civil court is a bad idea. It seems to go back to ancient laws that looked on women as property, so if the property was damaged you got a monetary award to make the owner of the property whole, so to speak. When a woman is attacked, it is exactly the same crime as when a man is attacked, right? And the state should be vitally interested in both? At its heart, VAWA may be as sexist as what it's attempting to cure.

Joan Biskupic: Members of Congress said when they passed the law that they were responding to long-standing discrimination in state justice systems (among cops, prosecutors, judges) to rape victims and women subjected to domestic violence. They said sexual assaults have been taken less seriously than other violent crimes, and that something had to be done on the federal level.

Oklahoma City, Okla.: Using your best vision, how do you think the Supreme Court will "look" in five years.

Joan Biskupic: Oh, good question. And since you asked just about the "look," I don't have to worry about naming names of potential new justices. I think we'll still have seven men and two women. I think we'll still have just one black. Maybe we'll have a Hispanic. It will depend on who's elected president. My speculation about the demographics arises from some of the names I'm hearing out of Dem and GOP camps--but it's early and since we don't know who's going to be president, we hardly know who might be nominated. And we also don't know who will retire. They all seem in pretty good shape. Maybe the chief was off at some spa, rather than at the State of the Union. Resting up for four more years!

Newton, Mass.: I am interested in the status of petition for certorari filed in the campaign finance contributions case of Simon Fireman v. the United States, 98-1976.
It appears to be one of the last '98 petitions yet to be reviewed and evaluated by the Supreme Court?
Can you offer any insights into why the Supreme Court has delayed acting on this petition? Are there any other '98 petitions yet to be acted on? Thank you.

Joan Biskupic: Hmmm. I'm not sure. That case was filed back in June, and it's still pending. I don't know the particulars of it, but sometimes the justices hold onto cases until they resolve related questions, in cases where they've already granted an appeal. This appeal could end up being sent back to lower courts in light of the ruling earlier this week in the Missouri campaign finance case. But I'm just guessing. Also, this is actually not a 1998 case. It's labeled that way because it came in last June when the justices were still officially in the October 1998 term. But your overall point is well taken: things move slowly at the Supreme Court and we never know what's going on until a ruling or order is issued. (And even then, we sometimes don't get it!)

Suitland, Md.: I am always impressed by all the scholarly, erudite questions you receive on this discussion. It's the only Live Online discussion where people actually apologize for NOT being a lawyer before asking a question.

Do you sometimes wish you got some silly questions so you could give pithy fun answers like Craig Stoltz or Tony and Mike?

Joan Biskupic: Yes, yes. Some of my favorite questions were the ones last October about which justice I'd want to be for Halloween! Levity is always appreciated. For goodness sake, I'm competing with our sports guys Tony and Mike, the movie critics, an advisor to the lovelorn. The Supreme Court is not what you'd call a natural draw. And people should never apologize for not being a lawyer. In most circles, that's a point in one's favor.

Washington, D.C.: Earlier you said you thought it would be 7 men and 2 women. I can't help but ask, do you have specific people in mind? You also said it would depend on who ends up being elected. Exactly how much different do you thing the Court would be?

Joan Biskupic: Oh, the court will be very different, depending on the president. If George W. Bush wins, I anticipate that the right wing of the GOP will push him hard for a true conservative. Even if he goes for someone more moderate, his version of a moderate will be different from Al Gore's version, for example. A single justice could shift the balance on church-state issues, the ongoing federalism debates, maybe even abortion.

Los Angeles, Calif.: The age discrimination case had some interesting exchanges over the proper role of stare decisis that appeared to be fairly result-oriented. Any thoughts on what this portends for the future?

Joan Biskupic: You're referring to the justices' recent ruling that Congress lacked the power to say that state workers could sue their employers under federal age-discrimination law. Whether something is results-oriented is in the eye of beholder. But there does seem to be a fairly new and consistent drive on the part of five justices to give states more autonomy and rein in Congress. This is a departure from past cases, so it's questionable that the justices can rely on precendent or what's known as "stare decisis" (that's just the kind of phrase that's appreciated here but scares off some folks. See above.)

Joan Biskupic: That's it for today. Thanks to all who participated. Next week: Abortion--the law and how it's become a factor in the presidential campaign. The justices have agreed to take up a case involving a kind of late-term abortion procedure, referred to by opponents as "partial birth" abortion. Meanwhile, the presidential candidates are finding the topic to be more of a minefield. While the justices are in a brief recess, we'll discuss the enduring legal debate over abortion. See you next week. And remember, non-lawyers are always welcome.

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