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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

State Age-Bias Liability at Issue Before Justices (Oct. 14)
Maine School Voucher Law Stands (Oct. 13)

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

Friday, October 15, 1999

The Supreme Court heard oral arguments in cases involving the environment, age discrimination and government records this week, but the cases the justices rejected or accepted for later in the term made a bigger splash. They refused to touch two red-hot issues: school vouchers and the Second Amendment right to gun ownership. But the justices agreed to review a case about police searches, another involving President Clinton's friend Webster Hubbell and a dispute about overtime pay. They also let stand the conviction and life sentence of Terry Nichols in the Oklahoma City bombing and turned away a case involving a public school district for Hasidic Jews.

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: Welcome to this week's "Holding Court." This is the time of year when Supreme Court justices are engaged mostly in listening and choosing. Listening to oral arguments on the cases carried over from last term. And choosing new ones for the current term.

The liveliest session this week came when the justices took up an age discrimination case that could affect a host of federal civil rights laws. Although the legal issue revolves around Congress's power to hold states accountable (in this case to follow age-bias laws), it was surprising, as an aside, that so many comments were made about the wisdom of even having a national law against age discrimination. The suggestion from some of the justices – themselves in their 60s and 70s – was that if employers believe younger people as a group are better workers, who's to quarrel with that! Maybe they were weary; it was the last day of their two-week oral argument session.

Charleston W.Va.: Did the court give reasons for refusing to hear the Maine voucher case? What is your prediction with voucher issues: is the Court waiting for a number of voucher cases on which to rule; is it too divided among itself to allow the case beyond the discussion list? Thank you.

washingtonpost.com: Earlier this week, the court refused to hear a challenge to a Maine law about vouchers for private schools but not religious schools (see story).

Joan Biskupic: No, the justices didn't give any reasons. They simply issued a one-sentence order denying the appeals. For those of you who might have missed it, the court refused to take up appeals by parents in Maine, challenging a state program that provides subsidies for children in private high schools, but excludes religious institutions.

And, as to your question about why, I think it's two-fold. I think the justices want to see how the lower court cases shake out. States are still experimenting with voucher programs. Florida recently became the first to institute a state-wide one. But, also, the court is narrowly divided on these church-state issues. I think that both those justices who might want to outlaw such public aid to religious schools and those justices who might feel strongly about permitting vouchers cannot be confident of five votes for their respective sides.

washingtonpost.com: The justices turned down cases involving some pretty high-profile issues this week, and they did it without comment. How common is it for them to refuse to hear cases without comment? And is it your sense that it wasn't necessarily the issues that the justices were dodging, but the particular cases and how the issues were framed?

Joan Biskupic: They almost always reject cases without comment or recorded vote. Which only leaves us guessing. Sometimes an issue just simply hasn't "percolated" enough out in the country; sometimes, a case will have bad facts or procedural problems that make it a poor vehicle for deciding a national standard; sometimes, the justices simply don't want to take on a tough controversy that could be decided in a way they, as individual justices, don't want... sometimes they're uninterested, sometimes bored. Bottom line: there are lots of reasons and we never know which ones contributed to which denied appeals.

Washington, D.C.: How was the oral argument in the environmental case involving Friends of the Earth?

washingtonpost.com: The case, Friends of the Earth v. LaidLaw Environmental Service, Inc., focuses on the Clean Water Act. It comes from the 4th Circuit.

Joan Biskupic: Good question. This case concerns whether a citizen lawsuit brought under the Clean Water Act is constitutionally "moot" – that is, must be dismissed – because the alleged polluter has come into compliance and no penalties are left to be paid the government. For environmental groups, it's an important case because it goes to the heart of how easily they can get into federal court and have some leverage/deterrence over companies that might be ignoring federal anti-pollution laws. ... But the justices didn't seem to want to use this case to rule broadly about citizen lawsuits and some of them actually suggested that the whole case might be moot because the company in the case had recently closed its facility.

Washington, D.C.: I was at the arguments in the age case too. Justice O'Connor asked why the employees could not proceed in state court under state antdiscrimination laws. In fact, they can. This would avoid the federalism concerns raised by the case.

Joan Biskupic: That's right. People who face discrimination can try to sue under state anti-bias laws. But, in some cases, the feds might offer more protection and the Justice Department has argued that state-employers should be held responsible if they refuse to hire or deny promotions to their workers over 40 (which is when the law kicks in).

Bethesda, Md.: Can you give us an idea of the specific questions with which the lower courts have dealt in ruling on the school voucher issue? Particularly, has a reasonable argument been made that parochial or other religion-affiliated schools could be held to a different standard?

Joan Biskupic: The underlying programs are all over the map. And the theories adopted by lower courts that have either struck down or upheld state policies are equally varied. For example, the Milwaukee program that the Supreme Court refused to interfere with last year allows straight "vouchers" for private schools, including religious ones. The Maine program is a subsidy. Designed to help people who live in rural areas without a public high school, it reimburses parents for tuition to private schools (excluding religious schools.) In Arizona, the state offers a tax credit for money that supports parochial schools. ... And no national standard has emerged for treating sectarian and non-sectarian private schools differently.

Las Cruces, N.M.: I saw a PBS NewsHour reporter opining that race and gender discrimination laws are likely exempt from the Supreme Court's current 11th Amendment bent. What is your view? How is the current 11th Amendment jurisprudence likely to affect Section 1983 litigation involving state agencies? How do anti-discrimination laws make sense to the court if not applicable to the states?

Joan Biskupic: That's an interesting question. Age bias is different from sex and race discrimination, so it arguably would be held to different 11th Amendment standards. (It's the 11th Amendment that protects states from lawsuits.) At any rate, some of the justices observed during the oral arguments that because discrimination based on race, national origin or sex is prohibited by the Constitution, it is a more suitable area for congressional action (and usurpation of state authority) than age discrimination.

Olney, Md.: I've watched the Supreme Court in session, taking half a day off from work, and thoroughly enjoyed it, besides it being educational. I've wanted to see a state vs. state case that was juicy, and there should be just such a one coming up. I was hoping you might know when the Bourre, N.H., vs. Maine boundary dispute over Portsmouth Naval Shipyard (article was May 22, 1999 by Pamela Ferdinand on A03) will be, if it's this session. Thanks.

Joan Biskupic: Isn't the court a great field trip! It's worth the time, to take the day off, stand in line and see the nine of 'em in action. But I'm sorry to say, I don't think that boundary dispute is before the justices yet. When it comes up, we'll try to keep you posted.

washingtonpost.com: Can you talk about some of the cases the court agreed this week to hear, like police searches?

Joan Biskupic: The police search case will look at whether cops' random searches of luggage for drugs or other contraband violates the 4th Amendment privacy guarantee. The justices also agreed to hear Independent Counsel Ken Starr's appeal of in a tax case against former Justice Department official Webster Hubbell.

Fairfax, Va.: Joan – in re: the school vouchers cases, has there ever been a challenge to the G.I. Bill, which allows students to spend their money at religious-affiliated universities?

Joan Biskupic: No, not at the Supreme Court... but that's a fascinating question. What often makes a difference is whether the public aid goes directly to a religious institution, and in the case of the G.I. Bill, as I understand it, the money goes to an individual to spend at the school of his or her choice.

Indianapolis, Ind.: What goes on with the justices during the two weeks each month that they're not hearing cases? At this point in the term they can't be too busy.

Joan Biskupic: They're actually starting to write opinions in the cases they've already heard. (And they continue to review the hundreds of petitions and briefs that come in each week.) What many people don't realize is that the justices vote within days of an oral argument, so they already are beginning to write the majority and dissenting opinions in last week's cases.... But, you have a point, they really aren't that busy this time of year. Some of them are are the road speaking to groups.

Washington, D.C.: So Ken Starr surfaces again with the Hubbell case. His track record is pretty good with the justices – any prediction on what'll happen this time, particularly with a new independent counsel about to take over for him?

Joan Biskupic: The new question is fairly technical, concerning when prosecutors can use documents that an individual surrendered under a limited grant of immunity from prosecution. It's an important question for federal prosecutors and for people who are targeted. But it's hardly the sexiest question that's come out of Starr's Whitewater-related investigation. ... I don't have any predictions about the outcome, but with the news that Starr is ready to leave office, I think it's unlikely that he will face-off at the court on this one.

Washington, D.C.: Will the judgments against the several individuals involved in the Oklahoma City bombing be reconciled in the courts? Is there a requirement that if one actor in a crime receives the death penalty, all actors must receive the death penalty?

Joan Biskupic: No, not at all, because the law assumes that different people play different roles in a crime. ... You might be referring to the justices' rejection this week of an appeal by Terry Nichols, who was convicted of conspiracy in the 1995 bombing. He got life in prison (which he's appealing) while Timothy McVeigh, who was convicted of first-degree murder, got the death penalty (he's also undergoing several rounds of appeals).

Virginia Beach, Va.: A number of church-state issues will be before the court this term. What is your take on whether the court will overrule the "Lemon" standard as some on the high court have advocated, or whether the court will continue to decide these cases without ruling on the validity of "Lemon"?

washingtonpost.com: The full text of Lemon v. Kurtzman (1971) is available on the FindLaw site. You can search the FindLaw database of Supreme Court opinions, as well as collected Circuit Court opinions and a legal dictionary, on the search page of the Supreme Court Special Report.

Joan Biskupic: The so-called Lemon standard, which comes out of a 1971 case named Lemon v. Kurtzman, generally says that the government can successfully defend some aid to religion only by showing that its purpose and effect are secular and not intended to aid religion; that the government involvement with religion isn't "excessive"; and that it doesn't require some continued government surveillance of the religious institutions affected..... Anyone still with me on this one???? .... It is confusing, and many of the justices have criticized Lemon for being difficult to understand, unworkable, too malleable.... Justice Scalia has described it as a "ghoul" in the night, stalking the court's cases... But with all that said, it's unlikely that five justices can get together on a new standard.

Arlington, Va.: The Florida teachers case argued this week may hinge upon how many justices believe in an absolutist approach to states' rights, that age discrimination is not a federal constitutional right. How do the lawyers who are arguing against the state in the case deal with this situation?

Joan Biskupic: The lawyers (those representing the Florida university professors who want higher salaries and those representing the Justice Department defending the ADEA) say Congress clearly and appropriately lifted states' immunity in the Age Discrimination in Employment Act. They say that Congress was concerned not just about age prejudice by private employers but by public ones, too.

Washington, D.C.: A good argument to watch will be on Nov. 9: Erie, Pa. v. Kandyland, involving the First Amendment and nude dancing. Joan, your headline should be "Nude dancing to be before Supreme Court today!"

washingtonpost.com: On our November docket page, you'll find some details about the oral arguments scheduled for that day, as well as a link to the Erie case decision by the Pennsylvania Western District Supreme Court, which is in PDF format.

Joan Biskupic: Nude dancing! Yes, who says the Supreme Court is only concerned with stuff like federalism and mootness? You're referring to a good First Amendment case. ... But I have to note that the oral arguments are scheduled for Nov. 10, not 9th. I'd hate to have anyone stand in line for nude dancing and get something else instead.

Washington D.C.: Any thoughts on which justices are likely to step down soon, and when?

washingtonpost.com: The recurring question.

Joan Biskupic: This is a recurring question ... probably the one that comes up the most. I don't think anyone will step down until after the next election. It's too tough, too political, to get a new justice through the Senate in an election-year. But then, I think our most-likely-to-resign justices are Chief Rehnquist, who's 75 and been in the center chair since 1986 (first appointed in '72), and Justice John Paul Stevens, who's 79 and been on the court since '75.

Raleigh, N.C.: What do you think we can expect to hear from the court when it reviews the Erie, Pa., case involving the degree of First Amendment protection accorded to nude dancing? Also, do you think the court is likely to grant the petition filed by the City of Jacksonville, Fla., regarding the use of zoning exceptions to regulate the location of adult entertainment businesses?

Joan Biskupic: Well, the last time the court looked at nude dancing was 1991, in a case from Indiana, and it couldn't come up with a standard that all the justices would sign. Basically, the court said that states can outlaw nude dancing without violating the constitutional guarantee of freedom of expression – but it said judges must weigh the erotic "message," so to speak, with community interests in safety and morality. It's a difficult balancing act... but isn't it fun to watch the court try?!

New York, N.Y.: What was the deal with the justices chickening out on ruling on the Louisiana gun case? Are they ever going to make a real live 2nd Amendment decision?

Joan Biskupic: Good question. It's such a hot issue. I'd love to see them take up one of those petitions (testing whether individuals' have a right to own guns) but I just don't see it happening soon. The activity in the lower courts is heating up, though, and that might put some pressure on the justices.

washingtonpost.com: Do you see the court trying to resolve some version the government-private school question in Mitchell v. Helms, while managing to avoid the out-and-out voucher argument? (The 5th Circuit case is scheduled for oral argument Dec. 1.)

Joan Biskupic: Yes, I think they're likely to go as narrowly as possible. I'm sure they're aware that everyone will be trying to read between the lines for some pronouncement on vouchers and the controversial school "choice" issue.

That case, by the way, tests a federal program that allows school districts to use public money to lend library materials and other instructional equipment to religious schools, as is done for other private schools. The Clinton administration has defended the program as necessary to hook all classrooms up to computers and the Internet. ... And I think a majority of the justices will uphold the program.

..... Enough predictions for today. Thanks all of you who joined up. And, once again, I'm sorry not to get to everyone's questions. Keep asking and keep watching the court.

washingtonpost.com: One last note: In answer to the Bristow, Va. question: Joan talked about visiting the court in the Oct. 1 discussion. If you have further specific questions, you can contact the Supreme Court public information office at (202) 479-3211.

© Copyright 1999 The Washington Post Company

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