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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

Court Cites Need for Warrant at Murder Site (Oct. 19, 1999)

Full Court Press: The Quirks of the Highest Order (May 3, 1999)
Nine Supreme Individualists: A Guide to the Conversation (April 28, 1998)
Supreme Court Film Offers Glimpse Behind Justices' Closed Doors (June 17, 1997)
Justices Growing Impatient With Imprecision (May 7, 1997)
Legal Elite Vie for Court Time in Pursuit of Supreme Challenge (Dec. 2, 1996)

Supreme Court Resources: court docket, schedule, briefs, orders lists, cases by subject

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

Friday, October 22, 1999

The Supreme Court issued the first ruling of the 1999-2000 term this week, declaring that police must obtain a warrant before searching a murder scene. Now that the justices have completed their first two-week round of oral arguments, "Holding Court" will look at the what goes on during those fast-paced, high-stakes sessions, the justices' methods, the lawyers' madness. The nine current justices are among the most active questioners in recent court history. They can turn a novice to mush and throw even the most experienced lawyers off-guard. But oral arguments offer one of the main ways for the public to glimpse how the justices think and see some of the nation's most important legal issues fought out.

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: Today "Holding Court" takes on what it's like when the justices hold court. No matter how prepared lawyers are, when they stand at the lectern, it often feels like their backs are against the wall. The justices are a tough audience. ... Two of the current justices, by the way, argued cases in their prior lives. Chief Justice Rehnquist described his experience as nerve-racking. He said when he walked out of the courtroom, he was drenched with sweat. Justice Ginsburg said that as much as she was nervous about arguing, she liked having the justices' full attention for that precious half-hour.

Atlanta, Ga.: Is there a separate exam for the Supreme Court bar? How does a lawyer qualify to argue a case before the court?

Joan Biskupic: No separate exam. But you have to be a member of the Supreme Court bar, which is easy, as long as you've been a member of a state bar or the D.C. bar for at least three years. ... The hard part is getting the client and getting the case up there. The justices hear only about 80 cases a term, and many of those are handled by government lawyers, either from the Justice Department or states.

Silver Spring, Md.: Dear Ms. Biskupic,

If you were walking down the street and a police officer came up to you and asked you your name, would you tell the officer your name or would you refuse? Why?

If a person has the right to remain silent when they have been arrested, don't they have a right to remain silent when they haven't been arrested?

My reason for asking this type of Fourth Amendment question is because so often we hear about cases where a person minding his or her own business is subjected to this kind of police interrogation in the odds that the police officer will find something illegal with the "subject" as they like to call the person whom they have stopped.

Just hoping to read your comments on this matter.

Joan Biskupic: I'd tell my name. ... But I get your point. There is a lot of controversy these days over how police seek out potential criminals, racial profiling, random check-points. I think some people naturally fear police, even though they aren't doing anything bad. They try to avoid any encounters with the cops, thinking they will only lead to trouble... ..... Or maybe, police didn't have a legitimate grounds to stop the person, yet when they did, they found some drugs or other contraband on him. Can the drugs be used against him in court? ... Your question actually plays into next week's topic. I'm going to be looking at an upcoming case that tests whether cops can stop and detain someone simply because he started running when he saw the officers approach.

Opelousas, La.: The IRS recognizes the boat I've lived on for 20 years as my home – am I protected against warrant-less searches? Does that include Customs even though my boat has never left the state?

Joan Biskupic: Generally your docked boat would be recognized as your home, so police couldn't come barging in without a warrant. But I don't know enough about Customs' rules and searches to know if you're more vulnerable simply by being on the water.

Washington, D.C. : How do you think the law enforcement community will view this week's decision about warrants? Does this apply to all crime scenes, or strictly murders?

washingtonpost.com: The court issued its first opinion of the 1999-2000 term on search warrants and crime scenes (see story).

Joan Biskupic: The case concerned only murder scenes. West Virginia officials were arguing that there should be a blanket exception from the warrant requirement for homicide scenes, so that police could immediately go in and examine everything. The justices outright rejected this, based on a 1978 ruling. (The court noted that police wouldn't need a warrant if they had to quickly go in and look for other victims or the killer himself.) But the court has been pretty consistent on requiring a warrant, so I don't think the law enforcement community viewed last Monday's ruling as much of a surprise. And it's pretty easy for police to get a quick warrant.

Washington, D.C.: What's the strangest thing you've witnessed during oral argument? Justices falling asleep? Lawyers with their flies open?

Joan Biskupic: Funny question. Here's something that happened once: The lawyer who had argued the 10:00 case was packing up his things, from the lectern and the lawyers' table next to it ... but unbeknown to him, the lawyer who was ready for the 11:00 case had already begun to put his briefs, papers and other materials on the lectern while he was conferring with his co-counsel. The 10:00 guy just swooped everything up into his briefcase and began walking out. The 11:00 guy suddenly noticed, just as the chief justice was calling the new case to order. So he goes running after the first guy, yelling, "Wait, wait, there goes my case..." He stops the guy, opens his brief case, pulls out his stuff and runs back to the front of the room and begins, hardly missing a beat, "Mr. Chief Justice, and may it please the court....."

Raleigh, N.C.: What health care law issues has the court decided to take up this term?

Joan Biskupic: There's a good case on whether a patient can sue his or her HMO when a physician makes treatment decisions based on the HMO's financial incentives.

Arlington, Va.: What makes a good legal advocate before the Supreme Court? I've heard that Ken Starr is as [good as] was John W. Davis (who lost Brown in 1954).

Joan Biskupic: Starr is pretty good. But I've seen him falter, when it seemed as if he was so overextended (during the Whitewater phase) that he wasn't as prepared as usual. And I think that's the thing that makes for the best advocates: preparation, knowing the case inside and out, the law, the legal record from lower courts. Confidence and an easy manner help, too. The best lawyers turn the arguments into a conversation. They're answering the justices questions effectively but not aggressively.

St. Louis, Mo.: In regards to Silver Springs question, the police have as much of a right to have a voluntary contact with a person as the next person. My question is, how do you feel based on the makeup of the court will the justices rule on "fleeing as reasonable suspicion?"

Joan Biskupic: Good question. This court has strengthened the hand of law enforcement over the years, so I think the justices might be leaning this way. BUT, I do think some of them recognize the reality that some people, mostly racial minorities, think they'll be harassed by police and run when they see the uniform. The case will be argued on Nov. 2, and I'll probably write a story out of the oral arguments... Maybe we'll get a hint then of where the court is headed.

washingtonpost.com: You can browse the court's docket, orders lists, briefs and other information on our resources page.

Washington, D.C.: Often academics argue cases before the Supreme Court – Harvard (?) Prof. Laurence Tribe comes to mind. Is this occurring more often than it used to, or have professors always been active advocates? Do you think they present better arguments than regular lawyers, or are they more likely to get rattled under the barrage of questioning?

Joan Biskupic: Law professors have been regulars up there. ... But, according to political scientist named Kevin McGuire who wrote a book a few years ago about the elite lawyers at the court, the typical Supreme Court advocate is a private attorney, about 45 years old and Harvard-educated. ... And on who gets rattled... they all do at one point or another. Earlier this month, I saw one veteran who is usually so good it's breathtaking fall apart, fumble through his papers and get thrown by tough questions. I think he simply wasn't as prepared as usual. AND sometimes even some of the regulars mix up the justices names, call Ginsburg, O'Connor and vice versa... And these are lawyers who even socialize with the justices!

New York, N.Y.: How much preparation goes into putting together an oral argument for the Supreme Court? Do lawyers get discouraged when they get cut off before ever getting a chance to use all that preparation?

Joan Biskupic: That's the trick, not to get discouraged, to keep coming back at it and not be thrown off track, because any individual question can be jarring. Preparation time varies, but most of the lawyers spend weeks getting ready and have one or two "moot," or practice, arguments with colleagues. That allows them to test out their reasoning and their preparation.

Washington, D.C.: What is a "per curiam" decision, like the murder scene search decision of this week? Does the whole court hear the case, with full oral argument? Why isn't the decision designated a normal, everyday decision? Thanks!

washingtonpost.com: In addition to the resources, you can also search FindLaw's legal dictionary on either the front page of the Supreme Court report or on our search opinions page.

Joan Biskupic: That's a very good question. A "per curiam" decision is merely a decision for the full court, unsigned, and typically handed down without any recorded vote. It usually is used when the justices get an appeal, want to reverse the lower court ruling, but believe that the law is so settled in the area that they don't need to hold oral arguments. So they issue a brief ruling just to put the particular lower court (here a West Virginia panel) back on track.

Chicopee, Mass.: I was intrigued by Justice Ginsburg's reaction to "full disclosure" as a remedy to the corruption of political campaigning. She contended that justices could still have their opinions swayed by honoraria, since they remain insulated from electoral politics. Does she really think this to be true?

Joan Biskupic: Hmmmm. I don't know, and she didn't elaborate during the oral arguments.

New York, N.Y.: The justices socialize with lawyers. I imagine they don't socialize with the press corps who cover them!

Joan Biskupic: At least not this member of the press corps!

Washington, D.C.: Is there a lot of socialization between the justices and the lawyers who present oral arguments? I imagine it's like any job or business where people socialize, but it just sounds sort of strange.

Joan Biskupic: I know it sounds strange, but in some cases they're old friends or former colleagues from law firms or past administrations. Ted Olson, who argued a case up there earlier this month, is a pal of Scalia, for example. But Scalia didn't treat him gingerly.

Rockville, Md.: Beyond knowledge and excellent research, what qualities go into making an effective oral argument before the court? Specifically, do you think presentation and dramatics have much effect upon the Justices given the importance of the briefs?

Joan Biskupic: I don't think a good presentation can save a weak written brief. But a pointed oral argument can help focus the justices on the legal reasoning, past cases, that can support a lawyer's point of view. ... On the other hand, I have seen rotten lawyers win their cases, simply because the law was so clearly on their side.

Rockville, Md.: My fiancé, who is a 3L, and I have an argument every few months about juries. Why doesn't the SC have juries? Actually, my question would be why DO other courts? My argument is that topics are so specific (and there's so much history as precedent), wouldn't it just be better to have a judge make decisions (as in non-civil cases). I don't think it's reasonable for the average American to understand all of the nuances to a legal battle and make an informed decision.

Joan Biskupic: Juries v. judges. It's an age-old debate. Unlike trial courts that must delve into the facts of the case (who did what to whom?), the Supreme Court is only concerned with the law. Was the law applied correctly by lower courts? So juries wouldn't be appropriate at that high level. But in trials, some people believe that a jury of one's peers is best to get at the facts of a situation, who's telling the truth, who's lying, etc.

St. Joseph, Mich.: Any thoughts regarding takings relating to discretionary land use permits that are properly denied? E.g., township denies a special land use permit, the denial is appealed, the court affirms, and the property owner files an action for an unconstitutional taking??

Joan Biskupic: Hmmmmm... This topic comes up periodically. But we don't have a so-called takings case at the court right now.

Rockville, Md.: What's your take on the KKK rally this weekend in NYC? I just love this country and its legal system when the leftist ACLU must defend the KKK. It's just so amusing.

Joan Biskupic: Yes, that's what the First Amendment and free speech is all about... sticking up for speech you detest.

washingtonpost.com: Some justices definitely seem more combative during oral argument than others. Who is the toughest one you've seen?

Joan Biskupic: They're all tough in different ways. Scalia is most combative. Ginsburg hammers away at a single point, all different ways. O'Connor is stern and persistent. Kennedy asks tough questions about how a lawyer's position is supported in the law. The chief is, well, the chief, and very picky.

Washington, D.C.: Ms. Biskupic – From a current GULC student to a former:

Has the court set a date for the Brozonkala case? And, do you know who will be arguing that case?

Thank you,
Josh Vitullo

washingtonpost.com: The court announced in late September that it would take this case, which focuses on the Violence Against Women Act. (See story)

Joan Biskupic: Hello fellow law student ... (when I think back to those law school days, they're all such a blur... Good luck finishing up!) ... And, no, the case testing the constitutionality of the Violence Against Women Act has not yet been scheduled. But I believe it will be sometime in January.

washingtonpost.com: No matter where a lawyer argues a case, it has to be a tough blow to lose. Does losing a Supreme Court case hurt anyone's career? Is anyone out there known as "the guy (or woman) who blew it"?

Joan Biskupic: That's a good question, and probably plays into the fears of the best of 'em.... But, no, I don't think anyone can really get that reputation, because a case cannot be lost by oral arguments alone. You can blow it and you can be ridiculed by some lawyers (and maybe even some reporters), but if you lose, it's likely that the written arguments didn't carry the case very far either.

Springfield, Mass.: I am a member of the National Moot Court Team at my law school and we are starting to practice our oral arguments for the competition next month. What makes the an advocate stand out to the court? Do you have any advice as to how we should prepare?

Thank you!

Joan Biskupic: As I said earlier, preparation and practice runs are crucial... But one other thing you might do is listen to tapes of Supreme Court arguments. C-Span plays these a lot, and various web-sites and educators make them available. A Northwestern law professor just put out a CD of the Supremes' greatest hits.

washingtonpost.com: More information about the Supreme Court "Greatest Hits" CD-ROM is available on the Oyez Oyez Oyez Web site.

Jacksonville, Fla.: The city of Jacksonville recently filed a cert petition (99-356) challenging the 11th Circuit's ruling that the City's zoning exception scheme for adult entertainment establishments was unconstitutional. One of the primary issues is whether the courts should apply the Renton "time place and manner analysis" for zoning regulations or the heightened scrutiny of FW-PBS for licensing schemes. In light of the Court's granting of cert to reconsider its decision in Barnes (nude dancing = protected expression), do you think the court may also be inclined to reconsider the extent to which local governments may regulate this type of expression?

washingtonpost.com: The nude dancing case scheduled for this term is City of Erie v. Paps A.M., tdba Kandyland (No. 98-1161) (full text of lower court decision – in PDF format). It's scheduled for oral argument Nov. 10.

Joan Biskupic: This adult-entertainment stuff is hot... I think I got a question last week on it. I can't predict what the justices will do on any petition (the odds are they they will reject it) but I'll watch for the Jacksonville case.

Washington, D.C.: Hi Joan:

You're great and so well informed. Thank You.

My question: The child support issue...I think it's a little harsh and not controlled well. They just locked up a colleague of mine and he was working paying child support but because of past arrears they locked him up. He lost his job while in jail and the courts care not one bit. Are there any laws that are on man's side...it seems very one-sided and unorganized. Is there something brewing somewhere to make this system a little more fair? There are true dead beat dads, but what about those guys that really are trying?

Joan Biskupic: You make a good argument for someone who might be trying to straighten out his life. But, as you know, some officials and many of the spouses who are left behind with the children, think things aren't tough enough. I'm sure situations vary widely among families and that the rules can hurt people on both sides.

Washington, D.C.: Has Justice Clarence Thomas increased the number of his questions since his appointment to the court?

Joan Biskupic: Nope.

Raleigh, N.C.: Law-oriented TV shows and movies and now Court TV are probably most people's only orientation to what trials are like. But you rarely see depictions of appellate arguments. Do those portrayals overstate the "drama" of the process? Any shows or movies you've seen that seem to get it right?

Joan Biskupic: That's a good point... And you're right, you don't see many appellate arguments on TV, fictionalized or real. Court TV naturally favors trials. That might be because the drama of an appellate argument is in the law itself, how the Constitution or a statute should be interpreted. The drama isn't about what some person did to another person. So it isn't naturally exciting... except to those of us here, of course.

Raleigh, N.C.: You are referring to Herdrich v. Pegram, which was reported in AMA News Oct. 18. Are there any other cases?

washingtonpost.com: This case has been granted (98-1949) but has yet to be scheduled for oral argument. The full text of the 7th Circuit opinion is available on the FindLaw site.

Joan Biskupic: The health case, that's right. There are no other major ones up there that come immediately to mind. ... But as we get into oral arguments and additional orders (granting new cases), other health-care disputes may arise. .. Thanks for the follow-up question. And thanks to all of you who participated today.

That's it for now. Next week, we'll look ahead to an interesting case to be argued Nov. 2, Illinois v. Wardlow, which tests whether someone can be stopped by police and detained simply because he ran when he saw officers coming. If someone flees at the sight of the uniform, should the law presume he's guilty of something?

It's an important question for a lot of city neighborhoods, where there are crime problems but fears, too, of police. ... So watch next Friday when we take on that question and other legal issues.

washingtonpost.com: More stories from The Post on lawyers, oral arguments and the Supreme Court:

Full Court Press: The Quirks of the Highest Order (May 3, 1999)
Nine Supreme Individualists: A Guide to the Conversation (April 28, 1998)
Supreme Court Film Offers Glimpse Behind Justices' Closed Doors (June 17, 1997)
Justices Growing Impatient With Imprecision (May 7, 1997)
Legal Elite Vie for Court Time in Pursuit of Supreme Challenge (Dec. 2, 1996)
Legal Elite Vie for Court Time in Pursuit of Supreme Challenge (May 20, 1996)
Brusque High Court Puts Lawyers Through the Wringer (Jan. 29, 1996)
Behind the Robes, Songs and Whitewater Rafting (Oct. 20, 1994)
Separating The Yakkers From The Silent Types On The Court (April 30, 1993)

Also, for the questioner from West Des Moines, Iowa on the court docket, issues and further background information, check our resources page.

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