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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

Supreme Court Hears Arguments in Race, Voting Rights Cases (Oct. 7)
Deepening Rift Over Judge Vote (Oct. 7)
Chart: Judicial Nominees Waiting for a Seat (Oct. 7)
Court Looks at Campaign Donation Limits (Oct. 6)
Senate Rejects Judicial Nominee (Oct. 6)
Death Row Case Tops Agenda for High Court (Oct. 5)
Ginsburg Present as Court Opens (Oct. 5)
High Court to Tackle Key Social, Political Issues (Oct. 4)
The First Quiz in October (Oct. 4)

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

Friday, October 8, 1999

The justices of the nation's highest court opened their 1999-2000 term on Oct. 4, and Justice Ruth Bader Ginsburg unexpectedly joined her colleagues on the bench just three weeks after surgery for colon cancer. The court began with an appeal from Virginia's death row and an orders list turning away more than 1,600 cases submitted over the summer. This week, "Holding Court" looks at the first week of the term and the schedule and issues to come.

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: The justices returned Monday, raring to go. During the first three days of their new term, all justices jumped into the fray of oral arguments. Their biggest case was on campaign finance rules. And it looks as though, as much as they have criticisms of the landmark Buckley v. Valeo ruling that governs money and politics, these justices aren't going to reverse it.

Feel free to ask about the new case, any of the other new ones, Justice Ginsburg (who was back on the bench!) or even the recent fight in the Senate over judicial nominations and the defeat of trial court nominee Ronnie White.

Lubbock, Texas: Has the Supreme Court said, one way or the other, whether it will take a case called U.S. v. DICKERSON from the Fourth Circuit? The lower court decision would appear to threaten the continued vitality of the famous MIRANDA decision (either in the Fourth Circuit alone if the Supreme Court denies cert. or nationally if the Supreme Court takes the case and upholds the decision). The central question is whether a congressional statute (known as "3501") that was passed after MIRANDA and, according to the Fourth Circuit, "restor-es] voluntariness as the test for admitting confessions in federal court," can overturn MIRANDA. I saw Georgetown Professor David Cole on C-SPAN recently, giving his analysis of the case. He feels MIRANDA should be preserved and the DICKERSON decision overturned.
Thank you.

washingtonpost.com: The full text of U.S. v. Dickerson is available on the FindLaw site.

Joan Biskupic: This is potentially a blockbuster case, but the court hasn't announced yet whether it will take it. In fact, the government still has a few weeks to file its brief in the case. ... And then it will be another few weeks before the court says whether it will take up the dispute. (The Justice Department asked for two postponements in its deadline. That's how tricky the case is.)

As you note, it's a challenge to Miranda v. Arizona, the 1966 ruling that set out guidelines for police interrogations. The court ruled that prosecutors couldn't use incriminating statements from suspects unless safeguards had been followed, to ensure that the suspect knew he had the right to remain silent and to have a lawyer present. We all know this because we watch cop shows on TV.

After that ruling, though, in 1968, Congress tried to reverse it with a law that said voluntary confessions could be introduced at trial, even if the rights weren't read to a suspect. The Justice Department has never really used the law, but the 4th Circuit ruled earlier this year that the law reversed Miranda, that Miranda doesn't exist anymore. The Justice Department thinks Miranda is still good law and that the 1968 statute was unconstitutional. But the department is in a quandary because it is supposed to defend all federal laws, and some prosecutors think it might be good to keep it on the books.

washingtonpost.com: Here is the full text of Miranda v. Arizona (1966).

Washington, D.C.: How big a surprise was it to see Justice Ginsburg on the bench this week? Seems awfully soon for her to be back at work after surgery.

Joan Biskupic: It was a shock. We knew shortly before the arguments were going to begin Monday morning that she would be taking her seat. And that was surprising it itself, given that she had gotten out of the hospital just days earlier. But then when we saw her, many of us couldn't believe how good she looked. She was a touch paler, but I don't think anyone would have noticed if the surgery hadn't been in the news. And she jumped right into the oral arguments with her usual persistence.

Olympia, Wash: This term, will the court hear any cases that may provide a vehicle to better define the "strict scrutiny" standard of review (first applied to the federal government in the Adarand case) or flesh out the parameters of federal "affirmative action?"

Joan Biskupic: You're talking about the standard the court uses when it looks at affirmative action or other policies that take race into account. There is no case so far this term that would shed further light on the constitutionality of affirmative action, but there is one somewhat related case. It concerns a Hawaiian law that allows only persons of Native Hawaiian ancestry to vote for the trustees of an agency that provides benefits to descendants of the original islanders. .... A white man has challenged that voting restriction as discrimination based on race. However the justice rule on this narrow case might affect the broader issue of government policies intended to help racial minorities.

washingtonpost.com: The Senate's rejection this week of Ronnie White for the federal bench is no doubt going to be a focal point of fights between the White House and Senate Republicans, given the party-line vote. Any idea what prompted the highly unusual rejection by the full Senate? And what do you make of the statistics about minority nominees for the federal bench?

Joan Biskupic: This came out of the blue earlier this week. Ronnie White, a Missouri supreme court judge who Clinton had nominated for a federal trial court seat, had been approved by the Senate Judiciary Committee twice. But Missouri Sen. Ashcroft had been protesting him, and on Tuesday Ashcroft went to the Republican caucus and urged all his GOP colleagues to vote against him, mostly using evidence that Ashcroft said made White look "pro-criminal." (He had voted against the death penalty in some cases.) ... The GOP apparently closed ranks and voted down White. It's the first time in decades that a trial-level nominee has been rejected and the first time since Robert Bork, in 1987, that any judicial nominee has lost on the floor. Because White is black, Clinton and several Democrats have suggested the opposition was racially motivated.

Arlington, Va.: The Supremes recently declined certiorari for the death sentence of Abu Jamal, a New York cop killer who has achieved renown in jail and who has gained powerful supporters. When it comes to looking at petitions, would the justices factor that in or is he just another odd name?

Joan Biskupic: Actually, I don't think Abu Jamal's notoriety factored into the rejection. His appeal was a long-shot at this stage. But he's not done with appeals yet and could eventually return to the court with a petition for habeas corpus, in which he can claim that he didn't get a fair trial, that his conviction was unconstitutional.

Cincinnati, Ohio: What lower court judges are being talked about for possible elevation to the Supreme Court? Please discuss both possible Republican and Democratic candidates.

Joan Biskupic: It is very hard to predict at this point. No one's really being talked about with any seriousness. Mostly because none of the leading presidential candidates have made a big deal of the judiciary or offered up any suggestions of who they think would be a good nominee. (When Clinton was a candidate in 1992, he actually mentioned Mario Cuomo as a potential nominee. Then he did offer Cuomo the job. The former NY governor turned it down.) ... But you shouldn't leave empty-handed and I'll offer a few cliches: if the Dems win, maybe former Senate Majority Leader George Mitchell would get a shot, or maybe 2nd Circuit Judge Jose Cabranes, who would be the first Hispanic justice. If the GOP wins, maybe 4th Circuit Judge Michael Luttig, a tried-and-true conservative. But I don't think anyone has an inside-track at this point. ... As I've mentioned before, so much depends on what's happening in the country at the time of a vacancy and what sort of message the president wants to send. This is politics, after all.

Washington, D.C.: I was stunned to see the lengthy list in this morning's Post of Montgomery County schools that specifically prohibit transfers in or out because of race. I think this is blatantly illegal. Doesn't the Fourteenth Amendment and Supreme Court precedent prohibit such actions?

washingtonpost.com: See the story: Schools Wrestle With Rulings on Transfers

Joan Biskupic: That's what the appeals court ruled, that the policy was indeed unconstitutional. But the practice has its defenders who believe in fostering racial diversity in the schools.

Washington, D.C.: John Ashcroft is up for reelection in 2000. More than being racially motivated, do you think he could be making his "crusade" against White an election issue, so he can say he protected the people of Missouri from White's views on the death penalty, etc., etc.?

Joan Biskupic: Many people believe it's definitely part of an election campaign. Ashcroft, whose likely Senate opponent is Gov. Mel Carnahan, has been playing up his opposition to the death penalty. In derailing White's nomination, Ashcroft said he was responding to local sheriffs and some prosecutors who didn't like White's record on the death penalty and other criminal cases.

Washington, D.C.: It seems a lot of the stories that I've read this week about the opening of the court term involve "spirited questioning" and a lot of participation by all nine justices. Is it always like this? Or is it more like the course of a school year, where they're interested and excited to begin with and then the questioning and the oral argument sessions stop being quite so exciting as the year progresses?

Joan Biskupic: Good comparison. It is like school. They begin in the fall and get out in summer. And they pass notes during class (really, they pass notes and whisper during oral arguments.) ... And you're right, that they got off it a hot start. But this group's oral arguments tend to be lively all term. Last week, Clarence Thomas, who usually is quiet, also participated. So that was noteworthy. ... They do wear out toward the end of the term, but it comes in the writing of opinions (some of them pull all-nighters), not in their oral argument sessions, which are only three mornings of the week.

Washington, D.C. : But wouldn't Ashcroft's election-year strategy likely backfire? Who wants to give his Democratic opponent – much less the Democratic Party, ammunition to say that this guy is overstepping his his bounds and mucking with the judicial process?

Joan Biskupic: You have a point. But I don't know what the response has been in Missouri among voters ... and, of course, there are 13 months left to the race. At this point, though, it looks like it will be pretty contentious. I can't say whether Ronnie White would have been a good judge or not – I don't know his record well enough – but it does seem that he got caught up in something much bigger than his own appointment.

washingtonpost.com: Yesterday the House passed the "Patients' Rights Bill," which allows individuals to sue their HMOs. How big a bomb do you think this could set off in the judicial system? Any predictions on how many years it will take before the Supreme Court handles a case stemming from this law?

Joan Biskupic: It would be a very big deal. So far, judges have generally blocked such lawsuits from going forward. I think that we'd see a lot of filings immediately, simply because we know there are a lot of complaints out there (legitimate or not) about HMOs. ... And any disputes over a new piece of legislation usually take two or three years to percolate up to the Supreme Court.

washingtonpost.com: Post coverage of the House HMO bill:
House Votes to Increase Rights of HMO Patients
Analysis: When the Majority Doesn't Always Rule

Arlington, Va.: Based on the argument in the Missouri political funding case, do you think that the court will use the "free speech" criterion to wipe out all controls on campaign funding? If so, even though the system is clearly broken, the court wouldn't allow it to be fixed.

washingtonpost.com: Joan detailed the specifics of the campaign finance case in a story on Wednesday. The 8th Circuit opinion, Shrink Missouri Government PAC v. Adams, is available on FindLaw, as is the 1976 Buckley v. Valeo case. For further information about any of the cases scheduled for oral argument, see the docket page.

Joan Biskupic: No, I don't think they're ready to reverse Buckley v. Valeo, the 1976 ruling that first allowed restrictions on campaign CONTRIBUTIONS (but said candidate SPENDING could not be limited). I think some of the justices are uncomfortable with government limits on what they view as political speech (the money) and many justices definitely think Buckley is flawed. But I don't believe there is a majority to overturn the ruling and allow absolutely no controls. I think they are worried about what a free-for-all the system would become. ... Some people argue that that's where we're at anyway, with all the loopholes in the campaign finance laws that exist.

Arlington, Va.: Gov. Carnahan of Missouri is in favor of the death penalty. Ashcroft is criticizing him for commuting the death sentence of one prisoner at the request of the Pope who was in St. Louis at the time. This raises the question of why the court allows federal death penalties when it is obviously mainly a state function.

Joan Biskupic: I can't comment on Missouri politics.... But as for the court and the death penalty, most of the cases indeed involve STATE death penalties. The disputes come to the court when state inmates challenge their sentences as a violation of the federal constitution. And this court has continued to uphold state capital punishment laws.

Mt. Rainier, Md.: It's odd to say that Mr. White is 'anti death penalty' when he upheld more than 70 percent of the death penalties he reviewed – and was with the majority opinion on a lot of the ones he turned down. It sounds an awful lot like a weak excuse, and possibly just a bit of malice against Clinton.

Joan Biskupic: Thanks for another point of view on the Missouri situation. ... But I'm not sure how much this was directed at Clinton – the president hadn't really gone to bat for White before the nomination failed; his strong statements came afterward. I think this is mostly part of a state fight and how politics so often overcomes judicial nominations, for better or worse.

Baltimore, Md.: Do you think Clarence Thomas started speaking up (and probably stopped sitting and staring up at the ceiling) during oral argument because he finally got comfortable on the court – let's face it, the guy was in the midst of a lot of controversy for a long time – or do you think he just got tired of people giving him a hard time for being so quiet and mostly going along with Scalia? I imagine he'd want to actually be known for having his own voice.

Joan Biskupic: Who wouldn't want to be known for having his own voice? And Thomas definitely has a distinct view in his written opinions. He and Scalia part company plenty of times on theory, if not some key votes. But we'll have to see if he keeps speaking up. I actually don't think he's comfortable doing it; it doesn't seem to come naturally to him. Even the question he asked last week in the campaign finance case sounded a bit rehearsed. And the lawyer he asked it of didn't understand the question at all. ... But I think that if Thomas did begin to be an active participant at oral arguments, he'd bring a unique point of view. Remember he headed the EEOC for several years and worked closely with so many of the laws that come before the court.

Not from Missouri: Since this is Missouri day with the White rejection and the Missouri campaign finance case, I should note that Justice Thomas once lived in Missouri when he worked for John Danforth.

Joan Biskupic: Yes, and it was then-Sen. John Danforth who ensured that Clarence Thomas got through the Senate, in the midst of all the controversy over Anita Hill's charges. And it's John Danforth who's now heading up the Waco/FBI inquiry, which is all over the news..... Anyone been to the Arch recently?

Washington, D.C.: As we've seen from a lot of books and memoirs, presidents and lawmakers are really concerned about their legacies. Is the idea of an individual "legacy" as important to Supreme Court justices?

Joan Biskupic: I tend to think so. Most public figures are concerned with how they are perceived and I think they like to believe that they are contributing something to the nation that is long-lasting.

Mt. Rainier, Md.: The patients' rights bill, as you say, COULD be a big deal. But it probably won't be if Texas' experience is a guide. The opposition yelled that the HMO's and courts would be swamped. So far very few cases.

Joan Biskupic: Hmmm. Interesting. You may be referring to the story by my colleague Amy Goldstein. The record out there is mixed, and states are only tentatively moving into this area.

Brookston, Ind.: What do you think the chances are that the court will ever televise oral arguments live or on a delayed basis?

What books would you recommend that give insights into the court's proceedings?

Joan Biskupic: The chances are virtually nil. David Souter has said it will happen only over his dead body. The chief justice doesn't want TV in there. None of them do. I can't overstate how cautious and tradition-bound this crowd is. .. ... And good books: there are lots of them. The Brethren is a good read with a lot of insider stuff. Rehnquist's own book on the court is a gem, too. It's all about how the court used to work and how it works today. One of my favorite biographies of a justice is about Lewis Powell, by John Jeffries. That's it for the commercials.

And that's it for today. Thanks to all who participated... Sorry for those whose questions were left pending. Ask them again next week (unless it's about Missouri) And watch next week, when the justices will hear arguments in a good age discrimination case and a dispute over when citizen groups can sue polluters.

© Copyright 1999 The Washington Post Company

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