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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

Making 'The List': A Final Sifting of Appeals (Sept. 6)

Live Online: Holding Court

Supreme Court Special Report
Court stories from The Post and the AP.

Friday, September 10, 1999

The Supreme Court is now in a flurry of activity in preparation for the term that begins Oct. 4. The justices, their clerks and a host of others are sorting through "The List," a collection of nearly 2,000 cases appealed from lower courts, including more than a thousand petitions that came in during the summer recess. Though The List is long and the briefs outlining the issues are many, the justices ultimately hear only about 1 percent of cases that petition for consideration.

This week on "Holding Court," we'll look at the screening process, how the justices decide which appeals to take and the preparations underway at the court now.

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.

Biskupic answers your questions on the Supreme Court and legal affairs Fridays at 10 a.m. EDT. Today's transcript follows:

Washington, D.C.: Have the clerks and other staff been compiling information and cases throughout the summer, or do they wait until shortly before the term begins?

Joan Biskupic: Good question. The clerks have been working since sometime in July. That's when most of the new law clerks come on. And the petitions began stacking up a few weeks before that. ... But the fact that most of the justices travel during the summer and human nature being what it is, the real crunch goes on now. ... Also, the way it works for parties to a lawsuit is that one side files a petition, the other side has 30 days to respond... so paper is always coming into the court. But the justices usually can't determine the worth of the appeal until they hear from both sides.

And to everyone today, Welcome! "Holding Court" is back in the business of talking mostly about the Supreme Court, which officially begins its term on the First Monday in October. But if you have questions about other legal issues (the cyberspace/free speech ruling out of Detroit this week, for example), feel free to toss those in, too.

washingtonpost.com: Your point about the terminology in briefs about the buzzwords "split in the circuits" was interesting. Are there any other rhetorical bells and whistles that lawyers use to catch the eye of the justices and clerks?

Joan Biskupic: Another device beyond pointing to "splits in the circuits," which refers to different appeals courts deciding similar cases differently, is to emphasize a dissent from a respected judge on the lower court. The appealing party wants to show the Supreme Court that his case was wrongly decided and if he can point to an esteemed, veteran judge who dissented from the lower court ruling, it helps. Two attention-getting jurists come to mind: Richard Arnold, in the 8th Circuit, and Richard Posner in the 7th Circuit.

Miami, Fla.: What are the advantages to the "cert pool," as opposed to the way cases used to be chosen? Why did Rehnquist institute it?

washingtonpost.com: Joan talked about the "cert pool" and the way cases are chosen for the term in the latest Full Court Press.

Joan Biskupic: It wasn't just Rehnquist who started it. He wrote in his book that Justice Lewis Powell also was interested in trying to streamline the screening process back in the 1970s. But the chief himself thinks it's more efficient, thinks it avoids duplicative efforts. He also draws a line between the kind of decision-making skills required for determining which petitions to take and actually deciding the merits of the case. Rehnquist suggests that its a fairly routine matter to decide which appeals to accept. Not everyone agrees.

New York, N.Y.: Are there particular circuits whose decisions are appealed more than others? Are there particular circuits whose petitions for cert are granted?

Joan Biskupic: Well, the people of the 9th Circuit, which is made up of nine western states and two territories, send lots of appeals to the Supreme Court. But that is mostly a reflection of the size of the circuit and its diverse caseload. Still, the 9th is probably the nation's most controversial circuit. Despite the conservative influence of the Reagan-Bush judges and the moderate Clinton appointees, it remains one of the most liberal circuits. It also has the dubious distinction of being the circuit most reversed by the Supreme Court. So, if you lose a case in the 9th Circuit and the Supreme Court agrees to review it, chances are you'll win.

Washington, D.C.: Crystal ball time. Even though some issues are pegged early on as definitive ones for certain terms, others end up being the real major issues. Affirmative action was supposed to dominate a couple of years ago, and sexual harassment ended up being the big issue. What do you think will be the major issue this term?

washingtonpost.com: The Piscataway case on affirmative action was settled before the justices heard it.

Joan Biskupic: That's a good question. We'll know better in a couple of weeks after the justices have announced about a dozen new cases for the term. They already have about two dozen cases that were carried over from last term. But, right now, religion, the clash between church and state, is a big topic. The court already has an important case on whether taxpayer money can be used to pay for computers, software and other library equipment in parochial schools. A ruling in this dispute could influence the debate over publicly financed vouchers to help students attend religious schools. ... And there are several petitions now pending involving the standards for prayer at high school graduations – a very controversial topic in the states. ... Another big theme this term will no doubt be federalism, the boundary between state and federal power. One pending appeal involves the constitutionality of the federal Violence Against Women Act. The case was brought by a woman who says she was gang raped while a student at Virginia Tech; she is suing under the law that created a private right of action for victims of so-called gender-motivated violence.

washingtonpost.com: While they no doubt vary, how long is the average brief that accompanies a petition for certiorari at the court?

Joan Biskupic: They do vary. But the court limits the petition to 30 pages, and many lawyers usually come close to that limit. Each petition is accompanied by the lower court ruling, too.

Arlington, Va.: Looks like the Supremes came up with more minority clerks this year. Isn't that an admission that the criticism of them for not doing so in the past was warranted and do you think their presence will affect either the content or the quality of the opinions?

Joan Biskupic: Hard to tell. The clerks for the upcoming term were hired close to two years ago, before the brouhaha started. Different justices have responded differently to the criticisms. Some say they regret that they haven't had more minorities. Some say they've never considered skin color one way or another, and are not about to. Some have kept quiet. But I think as a group, the justices would like to hire a more diverse crop of clerks. And as the law schools and lower-court clerk pool becomes more diverse, I think we're going to see the numbers of minorities keep rising. Will that affect the context or quality of opinions? That's even more difficult to answer, because of the group effort in each of the chambers. But I'd say that diversity among the clerks is as valuable as diversity among the justices. Remember, too, however, you cannot predict how these particular justices will rule based on the color of their skin...

Bethesda, Md.: What was the cyberspace/free speech ruling in Detroit?

Joan Biskupic: It involved a fight between Ford Motor Co. and the operator of a Web site who put up confidential Ford documents (potentially relating to trade secrets) that he received anonymously. Ford asked a federal judge in Detroit to order the documents taken down. Judge Nancy Edmunds refused, saying First Amendment free speech interests trump the intellectual property issues here. ... But the lawsuit continues. The order this week merely refused to block the "publication" of the documents.

Washington, D.C.: Can you talk a little about covering the court – where journalists sit, how many are there, are there assigned seats, etc.? I'm guessing the Supreme Court press corps isn't as big as the White House or congressional. Is it as competitive?

Joan Biskupic: It is a smaller press corps than the White House. There are about 30 of us "regulars." We have a small press room in the court building itself. Many of us split our time between the court and our newspaper offices. During oral arguments, the press section is to the left, as you enter the room. It's a pretty tight space. We're all squished in there, furiously taking notes, trying not to bump elbows. And I consider it very competitive.

Baltimore, Md.: How long are the clerks' terms? At this point, are they newly hired, or have they had some time to get to know the justices and what they would think is important?

Joan Biskupic: With a few exceptions, clerks serve for one year, beginning in July. And your question is on-point: it's hard to sort through hundreds of appeals just as you've gotten on board and have few points of reference.

Washington, D.C.: How active do the justices get in helping to choose the cases they will hear? Where does the solicitor general come in?

Joan Biskupic: The involvement of the justices varies by chambers. Justice John Paul Stevens, for example, doesn't rely on the "pool" of clerks from all the other chambers that review the petitions and write memos on their worth. Presumably, each of the other justices reviews the recommendations of the clerks, of which petitions to grant, which to deny. I'm not sure how often they each go back and read the entire lower court opinion, rather than simply rely on the clerk's take. ... The solicitor general, for those of you who don't know, is the federal government's top lawyer before the court. The current SG is Seth Waxman. He's responsible for any government case appealed to the court. But he often is asked by the justices to give advice on disputes in which the government isn't a party but might have a stake. The SG's closeness to the court has earned it the nickname "10th Justice."

Washington, D.C.: Is there one justice with a reputation for being most stringent on what cases to take? Any one big naysayer?

Joan Biskupic: Jeez, I wish I knew. The justices make all their decisions in a closed conference room, without clerks or any staff. So it's hard to know what's said when the justices decide which cases to actually take, whether anyone has a rep for being more open to taking certain appeals. ... Over the years, however, Chief Justice Rehnquist has suggested he personally has less and less interest in various cases and is more willing to let lower courts sort out legal messes before the justices intervene.

Silver Spring, Md.: When you say the Supreme Court press corps is competitive, what do you mean? It's competitive to get that assignment or the individual members compete with each other to get the best story?

Joan Biskupic: As it is on other beats, we all want to have the most interesting stories and to have them before other news organizations do. The hot stories tend to be over judicial retirements and appointments. Who's likely to leave the bench, who would the president nominate. But in a daily way, there's also competition in trying to explain the court (and these reclusive individual justices) in ways that average people can understand and to make readers see the relevance of the law in their lives.

New York, N.Y.: What were the qualifications (school, previous clerkships, etc.) of the few African-American students who clerked for the S.C.? Asian-Americans? You may not have the answer, I recognize.

Joan Biskupic: You're right. I don't have an answer. But, as usual, this term's clerks are mostly from the Ivy league and other prestigious schools like Stanford and Chicago.

Atlanta, Ga.: What's your process of reporting on the court? I know you have a legal background, but do you spend most of your time buried in court briefs? How do you balance that with actual reporting and going to hear oral arguments? Do you go to all of them?

Joan Biskupic: There is a lot of reading of legal briefs. But I also spend time interviewing parties to the case, their lawyers, other interested parties. And I try to talk to experts in a particular field to see how a single case fits in. I go to as many oral arguments as I can. On some days when I'm on deadline with other court news (for example, from a ruling or an orders list), I skip the oral arguments. Usually, I go back and look at the transcript, which actually can be just as illuminating. During the actual session, the lawyers and justices talk so fast, often interrupting each other, that I sometimes miss some of the nuances of the justices' concerns.

Richmond, Va.: "Selection" question, though not exactly on topic. With the presidential election coming up and speculation over the next retirement from the Supreme Court, the process of selecting a justice is occupying a lot of people. What goes into the process for selecting a justice? Is it different for each president? And is it common for judicial appointments to be held up, as they have been for other federal judges during the stand-off between President Clinton and Sen. Hatch?

Joan Biskupic: This is a very big question. I think the criteria for a new justice will depend on the president and what's going on at the time. What will he feel he has to prove, what special interests will he try to appease, what problems (remember the nanny tax?) must he avoid. I can't tell you who might be picked, as much as I can't tell you who will win the election. BUT I can say the next justice is going to make a huge difference. On church/state issues, on federalism, on a host of concerns, this is a narrowly divided court.

That's it for today. We'll be here next week, again taking up the court's new cases and what the justices themselves are up to. Thanks to all who participated.

© Copyright 1999 The Washington Post Company

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