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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

Court to Hear Case on Violence Law (Sept. 29)

Live Online: Holding Court
Supreme Court Special Report
Court stories from The Post and the AP.

Friday, October 1, 1999

The Supreme Court's 1999-2000 term begins on Oct. 4, and the justices are already scheduled to consider controversial topics including aid to private schools, grandparents' rights, voting rights, race, tobacco and the FDA, campaign contributions and nude dancing. This week's "Holding Court" takes a look at the upcoming docket and the hot issues making their way through the system that the court could hear in the future.

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 Fridays at 10 a.m. EDT. Today's transcript follows:

Joan Biskupic: Seventy-two hours and counting. The first Monday in October is just three days away and the justices are about to start one of their biggest and more varied terms this decade. Earlier this week, the court announced it would decide whether Congress exceeded its power when it passed a law allowing women to sue rapists, in a case involving a Virginia Tech student. The court also said it would hear a good grandparents' rights case, an HMO dispute and a case involving abortion protesters.

So ask about these new cases, the start of the term, Justice Ginsburg's health or anything else as we get close to the pounding of the opening gavel.

Arlington, Va.: Can you talk a little bit about the specifics of the grandparents' rights case? Some coverage I've seen seems a little alarmist – as though grandparents would be able to bring suit simply if they didn't get to see their grandchildren as often as they'd like. Weren't there mitigating circumstances regarding custody or something?

Joan Biskupic: What happened in this case was that the mother and father of the children split up. They had never been married. Then the father committed suicide. His parents continued visiting the kids, but then the mother began to forbid it. The grandparents went to court trying to get a visitation order, under a Washington state law that grants third parties, including grandparents, a right to petition for visits if it's "in the best interests of the child."

The state supreme court struck down the law, saying that when a fundamental right is involved – a parent's relationship to her child – the state can interfere only if it can show that it has a "compelling interest." That's a much higher standard than the "best interests of the child." That court said it should be extremely hard to take away the parent's choice on such matters.

Eastpointe, Mich.: Will the case regarding visitation rights for grandparents deal with that issue alone or include custody?

Joan Biskupic: Good question. The case focuses only on whether states can give grandparents visitation privileges, but because it goes to fundamental questions about what rights parents have and what rights third parties (including grandparents) have, I think the court's ruling could affect custody and lots of other issues of child-rearing, child protection.

Stockton, Calif.: What are the prospects that the court will hold argument on the "prayer before football games" issue? If they do take the case for argument, what's your reading of the court's willingness to revisit Lee v. Weisman (the 1992 ruling was 5-4 declaring prayer at public school graduations unconstitutional)?

washingtonpost.com: The full text of Lee v. Weisman is available on the FindLaw Web site. In addition, you can search the FindLaw database of Supreme Court opinions in the Supreme Court Special Report on washingtonpost.com.

Joan Biskupic: Another good question, and one involving one of the more intriguing school prayer issues to come along – at football games, and in Texas, where they sometimes quip that football is the state religion.

Schools there often open games not only with a marching band but with prayers over the public address system, to motivate the players. The 5th Circuit Appeals Court ruled recently, however, that such school-sponsored prayer violates the First Amendment's establishment clause. The court said allowing prayer at events that aren't solemn occasions, like graduation, goes too far. The notion that that football isn't a solemn, momentous event constituted fighting words in Texas! And the school district is appealing.

Separately, in a case from Alabama, the 11th Circuit said school districts were free to allow prayer and, indeed, must permit it. That court lumped all school-related assemblies and sporting events into one category.

Now, though, to your request for a prediction. I don't think this is an easy area for the court. Rulings inevitably come down to 5-4. As much as its guidance is needed on what prayer is allowed at all sorts of school events, I don't think the justices are eager to weigh in. We'll know in the next month or two whether the court takes any of these cases.

Washington, D.C.: Given the current makeup of the court and its attitude toward federalism, what do you think are the odds that the Violence Against Women Act will stand?

washingtonpost.com: The court announced on Wednesday it would take a case dealing with the federal Violence Against Women Act. Full text of the case, which involved a Virginia Tech student who said she was raped by two football players, is available on the FindLaw Web site.

Joan Biskupic: The odds are very good that the court will strike it down. Proponents of the act have emphasized that a majority of the states support the law, in an effort to convince the justices that this is not another congressional attempt to tread on the domain of the states. But this is a tough one to argue, given the strong court majority who thinks Congress repeatedly exceeds its power and given that many federal judges went public about their opposition to the legislation aimed at local crimes when it was being considered in Congress.

Arlington, Va.: How would one gain admittance to the "First Monday in October" session of the Supreme Court?

Joan Biskupic: You can show up on the steps of the building, where two lines will be forming, one that waits for a permanent seat in the courtroom, and one in which people wait for just a few minutes in the courtroom (the so-called three-minute line; the guards rotate tourists in and out of there). If you're serious about getting in, you ought to show up at least by 9 a.m. The oral arguments don't begin until 10, but the courtroom is pretty small and public seating is at a premium.

Bethesda, Md.: Two cases on this week's orders list caught my eye: (1) the one involving a patients' right to sue an HMO and (2) the "sidewalk counselor" free speech issue. Accordingly, can you tell us (1) how the federal pension law is being used as a basis for this case and (2) what specific questions were presented to the Court in the latter case issue? Any guess as to the disposition of the justices in either matter?

Joan Biskupic: In the first, the court will look at whether HMOs and their physicians can be used under federal pension law (ERISA, for those who know it) for policies that give physicians incentives to keep costs down and arguably compromise medical care. The specific question is whether the HMO breached a fiduciary duty under the law.

In the second case, Colorado has a law that stops anyone who comes within 100 feet of a health clinic from leafletting, "counseling" or otherwise approaching patients, staff or other visitors to the clinic. People can't come within eight feet of a visitor unless they've gotten the person's permission. This is an important free speech case; in the past, the justices have allowed an infringement on such protest speech, though, to protect patients and keep order at a medical facility.

The HMO one presents a more complicated question and is tougher to assess. As you may know, there is big debate in legislatures and courts nationwide over when patients can sue HMOS for alleged bad care. (Both these cases will be argued in January and it will be interesting to hear how the justices approach the two cases.)

Washington, D.C.: Is it your sense that during this term the Rehnquist court will continue to rely on narrow interpretations of the law rather than sweeping rulings that establish certain rights or wipe out certain classifications of laws? It seems as though this court is unwilling to "go big," and certain issues, like affirmative action, are dying a death by a thousand cuts.

Joan Biskupic: Good point. This crowd doesn't like to "go big" on most issues that are important to many of us. The one place where the justices have taken large strides has been in the so-called federalism area, yanking power away from Congress in favor of the states. ... But on race, religion and other more personal issues, the steps are incremental. The justices think if any institution is going to shake up society, it shouldn't be the court.

Chicago, Ill.: If the Violence Against Women Act is struck down because it is a federal law that is an example of Congress overstepping its authority, do you think that opponents of abortion rights could use the same argument – national protection overriding the rights of states to decide for themselves – to try to overturn Roe v. Wade. The difference, of course, being that there's no federal law on the books making abortion rights legal. But could it affect rulings that allow federal laws that affect how abortion rights are applied – like RICO, for example, with abortion-rights protesters?

Joan Biskupic: Interesting question. But there are limits to the comparisons between the VAWA and abortion, because the court has said there is a constitutional right to abortion. There isn't a constitutional right to be able to sue for money damages for a rape or other gender-based attack, as the VAWA allows. ... So the court cannot get rid of protection for women who want to end a pregnancy, unless it reconsiders its position that the Constitution implicitly provides a right to abortion. ... And in terms of how abortion rights are applied, what kinds of state restrictions are allowed, RICO and other related laws, I don't think how the court rules on the violence act will necessarily affect those issues. They don't naturally pit Congress against the states, as VACA does.

Kitty Hawk, N.C.: Will the court consider any affirmative action cases this session? How about the University of Michigan admissions case: Has cert been granted in it?

Joan Biskupic: No, the Michigan case is still in the early stages in lower courts. I don't anticipate any on-point affirmative action case this term.

Evanston, Ill.: Do you have a sense yet about how the court will deal with the voting rights cases on the docket and the case that sort of deals with affirmative action in Hawaii? Both the political and court climate seem to be leaning further away from of recognition of race as part of American society.

washingtonpost.com: The Hawaii case, Rice v. Cayetano, deals with an agency in Hawaii set up to work for the betterment of native Hawaiians.

Joan Biskupic: You're right. This court, and perhaps much of society, has little tolerance for policies based on race, even those that are supposed to help people who've long faced discrimination. ... Both of the cases you mentioned, however, are quite narrow. And I don't expect the court to use either to say anything broad about racial preferences and affirmative action.

In the Hawaiian case, the state limits the right to vote for the trustees of the Office of Hawaiian Affairs to the descendants of the aboriginal people who inhabited the islands in 1778, and the question is whether that voting requirement unconstitutionally discriminates on the basis of race.

New York, N.Y.: Any news on Justice Ginsburg?

washingtonpost.com: Ginsburg left the hospital earlier this week.

Joan Biskupic: The prognosis at this point looks much better than it did last week. The court put out a statement on Tuesday saying that she was confirmed as having only Stage 2 colon cancer and that all lymph nodes were negative for cancer, there was no metastasis. We don't know what kind of further treatment (radiation, chemotherapy, maybe) could be required or how long she will be away from the court. But she has been participating in court business. Last Monday when the justices held their first big conference, she was still in the hospital but somehow took part, either by phone, fax, or written notes.

Fairfax, Va.: I have been reading about the Southworth case – the challenge to the mandatory student fee case at the University of Wisconsin. How do you think the justices will rule in that case?

Joan Biskupic: This is a terrific free speech case. The outcome might depend on how the court views its 1995 case, Rosenberger v. the University of Virginia, in which the court allowed the use of mandatory student fees to pay for a religious journal. A narrow majority rejected a challenge based on the Establishment Clause. This case doesn't involve a religious publication, so it's more of a pure speech issue. But the conservative students who protested the mandatory student fees had some religious and moral concerns in objecting to their money being used for causes they disagree with (gay rights, for example).

Washington, D.C.: I, for one, have found myself frustrated with how narrowly the Supreme Court sometimes interprets the laws. How do you think the Rehnquist court will be regarded by history? Particularly in relation to the Burger court or the Warren court.

Joan Biskupic: That is a very big question. And I'll do my best to answer it briefly. The Rehnquist Court is far more conservative – judicially, socially, politically – than the Burger and Warren Courts.

It's curtailed the powers of Congress. It's cut back on defendants' rights and streamlined the death penalty appeals process, to bring finality to cases. It has made it harder for governments and universities to put any affirmative action in place. Overall, on equal protection issues, it has said that blacks and whites, men and women, gays and straights, should be treated the same. But it has taken small steps on most social policy questions, deferring to legislatures. It's cut back on its overall docket and often ruled in the narrowest of ways in disputes, trying not to set the agenda for the country.

Arlington, Va.: I am curious about the question of "standing" to sue. I noticed that Judicial Watch has sued in Federal court about a private person giving the Clinton's a loan guarantee. Do the courts ask whether Judicial Watch has any vested interest in the outcome before they can become involved in a case?

Joan Biskupic: I can't address this case in particular, but the main thing courts ask in looking at legal "standing" is whether the person or organization suing has been "injured" in some particular way and whether there is some remedy the court case can provide.

That's it for this week. Watch the news early next week, as the justices issue another big orders list on Monday and hear oral arguments in a death row appeal case (also Monday); campaign finance (Tuesday) and voting rights dispute (Wed.) Thanks to everyone who participated this week. Oh, and watch for the "First Monday" quiz on the Federal Page Monday. It might stump even the regulars to this site.

© Copyright 1999 The Washington Post Company

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