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Holding Court with Joan Biskupic

Post Supreme Court reporter Joan Biskupic. (The Post)

Bans on Late-Term Abortion Upheld (Post, Oct. 27, 1999)
Court To Review Electrocutions (AP, Oct. 27, 1999)

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 29, 1999

When the Supreme Court convenes again next week, the justices will look at the issue of civil rights and the police. Scheduled for argument Nov. 2, Illinois v. Wardlow 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?

This week's "Holding Court" will also take up this week's development in the abortion wars. A federal appeals court in Chicago upheld a ban on a controversial method of late-term abortions, setting up a confrontation at the Supreme Court. In other news, the justices agreed to revisit the always-contentious issue of the death penalty and electrocutions.

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 11 a.m. EDT. The transcript follows:

Joan Biskupic: Welcome to "Holding Court" and a new time (an hour later), suggested by the washingtonpost.com folks to accommodate those sleepy folks in the West who were all sending in questions at the end of the hour. ... And as promised we're looking at whether cops are justified in stopping someone in a high-crime area just because he ran when they approached. The Illinois Supreme Court said no, that police cannot force people to "stand still at the appearance of an officer." The U.S. Supreme Court will hear the case on Tuesday.

Meanwhile, we also had some big abortion news last week when a federal appeals court by a 5-4 vote upheld Wisconsin and Illinois bans on late-term abortions. As one of the dissenting judges wrote, there is nothing hotter than the issue of abortion rights, and this controversy over so-called "partial birth" abortions is headed to the Supreme Court.

Laytonsville, Md.: Good morning, Joan. RE: The case from Illinois to be argued next week (stopping and detaining a person who flees after seeing police). What distinguishes this case from Terry v. Ohio (the old stop and frisk rule)? Granted, Terry was a search and seizure ruling, but it seems that a defendant's flight would more than satisfy the standards established in Terry. Thanks.

washingtonpost.com: Full text: Terry v. Ohio (1968)

Joan Biskupic: In the Terry case, in 1968, the court said police can stop and frisk people for weapons if an officer has reason to believe that the person is armed and dangerous, regardless of whether the officer has reason to arrest the person for an actual crime. The test was whether a cop, considering all the circumstances of what he was seeing, believed that the person was dangerous.

In the new case, the question is whether the fact that someone ran is enough to justify the stop. Can flight alone justify a stop?

Silver Spring, Md.: Was it a surprise to you that the court agreed to take the electrocution case?

Joan Biskupic: I was surprised. But it's an interesting question (whether electrocution violates the Constitution's ban on cruel and unusual punishment). Only about four states, all in the South I think, still use the chair. But if the court revisits its standards for "cruel and unusual" punishment it could affect many other cases.

Washington, D.C.: Do you think the late-term abortion ban being upheld is a harbinger of things to come? There's been all the wrangling over "partial birth" abortion in the Senate, which sounds like if passed, the could be challenged as Congress overstepping its powers and imposing itself too much on the states.

Joan Biskupic: Abortion is one of those enduring controversies. The 7th Circuit is the first federal appeals court to rule squarely that this type of late-term abortion can be banned. The 8th Circuit said last month that related laws in three other states were too vaguely worded and would stop women from abortions that earlier Supreme Court rulings permit. I couldn't guess what the court would do with a national ban on "partial birth" abortions, if the Senate were ever to pass the bill. While this court doesn't like the feds meddling in the business of the states, some of the conservative justices who have taken the lead on this also strongly oppose abortion.

washingtonpost.com: What's the likelihood that the late-term abortion ruling this week will make its way to the Rehnquist court? Doesn't this seem like the kind of sweeping issue the court keeps backing away from?

Joan Biskupic: Not if there's a serious conflict in the circuit courts of appeals. And as I mentioned, the 8th Circuit last month struck down laws similar to those that the 7th Circuit upheld. If the court were to take up an appeal from either of those rulings, it would mark the first time in seven years (since the 1992 Casey decision) that the justices addressed a woman's right to end a pregnancy.

Baltimore, Md.: What's the story with the police search case and the guy who ran when he saw police? Is his fleeing considered evidence or probable cause that he's done something wrong? And aren't people detained for reasons of police suspicion all the time, going to the same issue as racial profiling?

washingtonpost.com: The case, Illinois v. Wardlow, is scheduled for oral argument on Nov. 2. The appellate opinions and briefs are available on our November docket page.

Joan Biskupic: This case does raise some of the questions that emerge in the controversial racial-profiling context. In the new case, William Wardlow was hanging out in a high-crime area in Chicago. Several police cars were cruising the streets, and as one of the officers approached where Wardlow was, he began running. The officer cornered him, patted him down and found a .38 caliber handgun. ... Yes, people are detained for all sorts of reasons, but the Constitution requires that police have good reason to suspect that an individual is engaged in wrongdoing, dangerous, etc., before stopping the individual. There aren't supposed to be "arbitrary" searches and seizures.

Washington, D.C.: Abortion seems to be an issue that has been been largely tossed back to the individual states to make their own laws, under the privacy umbrella of Roe v. Wade nationally. Do you think the rulings either upholding or striking down bans on "partial birth" or other kinds of abortions indicates a movement toward standardization of abortion laws? Or do you think the courts and the states will be content to leave it as a patchwork?

Joan Biskupic: No, I think the high court generally believes this is something that should be left to the states-- after certain constitutional guidelines are met. In 1992, the court reaffirmed Roe v. Wade and its essential holding, that women have a right to obtain an abortion without "undue interference" from the state before a fetus becomes viable (that is, can live outside the mother) .... But then the justices left it to states to work out various regulations, medical safeguards, etc...

Lubbock, Tex.: I was just reading about the 7th Circuit's decision upholding late-term abortion bans in Illinois and Wisconsin. Interestingly, the two conservative judicial titans on that court, Judges Easterbrook and Posner, came out on opposite sides. Posner wrote that: "It is extremely difficult, indeed probably impossible, to distinguish a 'partial birth' abortion from the methods of abortion that are conceded to be privileged." Posner at one time was talked about as a possible Supreme Court nominee by a Republican president, but this kind of opinion would appear to dash those hopes -if he hadn't already burned bridges with his libertarian-type leanings-. What are your reactions to the 7th Circuit decision? Also, for the people who wrote in last week asking about what made someone a good advocate before the Supreme Court, I would highly recommend a book called "The Tenth Justice," by Lincoln Caplan, which is about the workings of the Solicitor General's office.

washingtonpost.com: Full text of the 7th Circuit opinion.

Joan Biskupic: Nice suggestion on "The Tenth Justice." And you're right to point out the differences between these two "conservatives." Posner is much more of a libertarian than conservative. And even before his fierce attack on "partial birth" abortion laws, in this recent opinion, he probably was already off the list of potential GOP Supreme Court nominees. He has a singular approach to the law that's neither of the left or the right. Posner blasted "partial birth" laws as politically motivated and "irrational," and attacked the majority opinion upholding them as equally political.

Mt. Rainier, Md.: What are the chances that the Supreme Court would overturn Roe vs. Wade – if they even select an abortion case to rule on? Why is this not perceived as a religious freedom issue? I don't understand why the Catholic church and certain right-wing Christians get to tell me whether or not I can have an abortion when I'm not a member of their congregations.

Joan Biskupic: So much depends on who ends up on the court in the next decade, but if I had to place a bet, I'd say you'd never get a five-justice majority to strike down Roe. As O'Connor, Kennedy and Souter (all GOP appointees) said in 1992, it's too much a part of American life now.

Benicia, Calif.: About Wardlow, It seems to me that they key word is "probable." It's more probable than not that someone has done something wrong if he or she bolts simply from the sight of a cop. Or is that view too heavily reliant on common sense?

Joan Biskupic: That's what the cops say, and Illinois officials, in defending the practice, even trace back to the biblical line, "the wicked flee when no man pursueth, but the innocent are as bold as a lion." BUT that said, what several civil rights groups contend is that minorities have been so abused by the police that they have good reason to run away, even if they have been doing nothing wrong.

Chicago, Ill.: How much weight do justices actually place on amicus briefs? With the heavy amount of amicus briefs filed, it seems unlikely the justices actually read any of them. Do some organizations carry more weight than others or does it depend on the type of case involved? Thank you.

Joan Biskupic: That's a good question, and I think it depends on the justice, as well as the organization submitting the brief. In the Wardlow case, for example, police organizations and states have filed papers on the side of Illinois, and I'm sure the justices will look at those, for nationwide considerations. On the other side, respected civil rights organizations have filed amici briefs and I suspect the justices will turn to those, too, given the overriding race and privacy concerns in the case.

Washington, D.C.: If it's "illegal" to run away from police, doesn't that get into a ridiculously fuzzy area of what is running away from police and what is just running? I mean, wouldn't there be a risk of police thinking a jogger or roller-blader was running away from them when they're just exercising? Isn't there a major, major fuzzy factor here?

Joan Biskupic: Well, maybe. But I don't think cops would accidentally pursue someone who's out skating. The situation usually arises when police are cruising through a high-crime area and realize that someone who'd been standing still spotted the cop car and bolted.

Washington, D.C.: If you had to dress up as one Supreme Court justice – living or dead – for Halloween, who would it be and why?

Joan Biskupic: What a great question! I'd have to pick someone who was recognizable... you wouldn't want to show up at a party and look like some generic, gray-haired old man. And you'd have to pick someone who people had heard of (that really narrows the field!) 'cause you wouldn't want someone dressed as Morticia Addams to say "Who was Potter Stewart?" So, of the current crowd, I guess I could only go as Sandra Day O'Connor, Clarence Thomas, Ruth Bader Ginsburg... and I just realized I'm spending way too much time on this question, getting way too analytical about Halloween.... Someone else answer this one!

washingtonpost.com: From the docket for the next couple of weeks, it looks as though next week will be a big week for criminal law and individual rights – self-incrimination, etc. Then the following week is nude dancing and Playboy TV. Are oral arguments scheduled thematically, or is it coincidence?

Joan Biskupic: It is a bit of a coincidence, although the criminal law, and then First Amendment cases, do fit nicely together. The justices consider appeals as they come in, then once a case has been granted, schedule it for the next available set of oral arguments.

Nashville, Tenn.: An AP story (Katherine Rizzo, 10-29-99) says the justices will discuss in a private conference today whether to block a preliminary injunction issued by U.S. District Court Judge Solomon Oliver in the Cleveland voucher case. Specifically, Solomon has ruled that Cleveland voucher's program may violate the establishment clause and thus cannot operate during a trial. Is this AP report accurate and how can I find out what action the jutices take?

Joan Biskupic: The court does have a conference this morning and it is indeed likely that the Ohio voucher case will be considered. There is a small chance that the justices will issue an order (accepting or rejecting the request by Ohio officials) this afternoon. It's more likely that whatever action they take today will be announced on the regular orders' list released next Monday, at 10 a.m. Watch for news then.

washingtonpost.com: The Orders List page in our Supreme Court report is continually updated by FindLaw. Check back often.

Alexandria, Va.: What about going as Thurgood Marshall? Or Byron White – just carry around a football. John Paul Stevens with a bow tie . . . .

Joan Biskupic: A prop! Of course, that's what I should do. I could go as Whizzer White and bring the pigskin. Do people under 40 remember who Whizzer White was??!! (He's still alive, by the way; he retired in 1993.)

McLean, Va.: What about abortion for servicewomen serving overseas? If a service member gets pregnant she must either obtain an abortion at her own cost in the country, or pay for travel to another country where it's legal. Pretty shabby treatment for the so-called defenders of the Constitution.

Joan Biskupic: I'm going to let that comment stand. I don't know enough about the military rules.

Washington, D.C.: In recent months, several justices (including both GOP and Dem appointees) have come out against mandatory sentencing and have complained about the Senate's judge-confirming pace. Do legislators pay much attention to what Rehnquist and other justices say about the courts and courts-related issues? And when someone like Rehnquist or Breyer decries mandatory sentencing, do they write the court equivalent of a Dear Colleague to senators or do they just use their bully pulpits?

Joan Biskupic: They're just using the bully pulpit. Rarely will a justice write to Congress. The chief does in his annual report and often will take the occasion to complain about how federalized criminal law has become, clogging the federal courts. ... Generally, though, the two branches talk to each other through their respective rulings and legislation.

Washington, D.C.: Given the premise of Wardlow, is it at all likely that the courts – any courts – will begin to address racial profiling?

Joan Biskupic: Good question, and I'm not sure. The specific issue in Warlow centers on the person's flight, rather than his skin-color or other characteristics. But it all does go to heart of how much discretion police should have to stop people on the street, under a variety of circumstances.

Raleigh, N.C.: Is it just electrocution that begs the question about cruel and unusual punishment, or are other forms of the death penalty open as well?

Joan Biskupic: The Florida case centers specifically on Florida's electric chair and whether it exposes a person to unconstitutional physical suffering. So, at the outset the court will be looking only at electrocutions. But the justices nonetheless will have to articulate a standard for "cruel and unusual" punishment and what they say could affect challenges to other forms of capital punishment.

New York, N.Y.: I'd dress up as Scalia, definitely. Easy if he still has the beard, and you could just comb your hair back and make really ascerbic remarks all night.

Joan Biskupic: Yes, and sing about being from New Jersey, which he's known to do at parties. But then, would I get invited next year?

Washington, D.C.: I've heard that there is challenge to the University of Michigan's affirmative action program that might spell the end of affirmative action should the case reach the court. I believe the case involved a white woman who was denied admission despite excellent grades. What is the status of this case and its potential?

Joan Biskupic: Good question but it's at a very early stage of litigation. No lower-court ruling yet.

McLean, Va.: In your opinion, what are the chances of the Equal Rights Amendment returning for discussion, and maybe passing?

washingtonpost.com: Could that potentially touch off a federal-state struggle as well?

Joan Biskupic: I don't know of any aggressive effort to push that through Congress again.

Washington, D.C.: That Chicago "sudden flight" case sounds a little like that case from last year striking down Chicago's anti-loitering ordinance. I guess the Chicago police are trying to stop street disorder, and are bumping up against constitutional restrictions.

Joan Biskupic: Yes, they've been trying various ways to clean up high-crime areas. In the earlier case, police wanted to be able to tell anyone loitering to move on (and if the individual didn't, to arrest him.) The Supreme Court struck down that law last year. Wardlow's lawyers make the point in the current case that if police cannot constitutionally force people to move on, they shouldn't be able to force them to stand still.

Washington, D.C.: What if a person is walking down the street with a color TV under his arm? Can the police stop and question him?

Joan Biskupic: Hmmmmm. It probably would depend on the circumstances. If someone is running behind the guy, yelling, "He just stole my TV," I would think so. But if the guy was walking from his van to his house, unlikely...

washingtonpost.com: Executions in Florida appear to be a subject of major controversy – the state supreme court even has a page devoted to death penalty briefs. Do you think the court will use this case as a way to re-visit the death penalty issue as a whole? Or is the method of electrocution particularly controversial?

Joan Biskupic: I don't think this court would revisit the larger death penalty question. Every single one of these justices supports capital punishment – unlike in previous decades when at least one or two justices opposed it on principle.

Cottage Grove, Minn.: Thank you for the excellent job you do with this column.

Query: Although they are all brilliant jurists, who, from your perspective, is the most intellectual justice?

Joan Biskupic: This makes the Halloween question look easy. ... Still, a few of the justices do tend to take a more intellectual approach, for better or worse, than the others, and those tend to be Souter, Stevens and Scalia.

Arlington, Va.: For a long time cops have stopped and detained people simply based on the way they look or because they're young or were in a suspicious place, regardless of whether they had done anything worth running away for. If I'd been hassled, I'd run when I saw a cop coming too. Since when is it a crime to run away when there's no evidence of wrongdoing?

Joan Biskupic: Since when is it a crime to run away? It's not that it's a crime. It's that it could make you vulnerable to police searches. That's what Illinois is saying here – not that you can be arrested just for running away from the uniform, but that you can be stopped and frisked. Usually, police must have probable cause to believe that you're engaged in some wrongdoing or that you're dangerous before they stop and search you.

Washington, D.C.: When the court used to hear more cases, did they hear four a day, or hear them more than three days a week?

Joan Biskupic: They kept to three days, but heard cases in the afternoons, as well as the mornings. These days they're ending at noon.

washingtonpost.com: What is the likely upshot of the Clinton administration's plea to the Supreme Court to stay out of the driver's license privacy case? (see AP story)

Joan Biskupic: So far the case is on track. The justices are scheduled to hear it on Nov. 10, and unless we get an order to the contrary on Monday, I think the court is going to proceed with its look at whether Congress can stop states from fully disclosing the drivers' license info they collect.

And that's it for today. Sorry to those whose questions I didn't get to and whose Halloween suggestions I'm ignoring. See you next week at 11, our new time.

© Copyright 1999 The Washington Post Company

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