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Holding Court with Joan Biskupic

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Friday, November 5, 1999

This week, Attorney General Janet Reno filed a brief with the Supreme Court urging the justices to reaffirm the 1966 Miranda decision establishing the rights of suspects in custody. Holding Court will also resume discussion of flight and frisk begun by an Illinois case about police detaining a person simply because he ran away. In addition, guns and the Second Amendment debate are back in the news after a Honolulu man shot and killed seven co-workers on Tuesday.

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 11 a.m. EST. Today's transcript follows:

Joan Biskupic: Hello all. Just want to open today with two additional notes about this week's topics: The oral arguments on the flight and frisk case were surprising. Even though this court tends to side with law enforcement in police-search cases, some of the justices bristled at the idea that cops should be able to stop and frisk someone simply because he ran away at the sight of an officer.

Also, some of you might have seen the story in this morning's paper about changes in gay law. Feel free to ask about that, but we'll probably devote a full session to the subject in mid-November, when the court is in recess.

Ellsworth, Kan.: When Clarence Thomas first came on the court, he was regarded by many as an intellectual lightweight. In recent years his opinions have gained respect, however, some critics have attributed the better work to superior law clerks. In your opinion is Clarence Thomas growing with job? Is he becoming a strong, effective, independent justice?

Joan Biskupic: Thomas is like a Rorschach test. People's reactions to him tend to reflect their attitudes about larger, more politicized, issues. But he's always had his own distinctive approach. He tracks a lot – philosophically – with Justice Scalia and in his earlier years at the court seemed more content to let Scalia do the writing on a case. But Thomas has been breaking out more, with his own particular brand of conservatism (very historically, textually based). ... So I do think he is becoming more confident, more used to the job, more willing to express himself in writing. Maybe we'll eventually hear more from him during oral arguments. (And I don't think his performance, whether it's rated good or poor, is determined by the work of his law clerks.)

Washington, D.C.: Why the filing from Reno on the Miranda law? Is it really in such danger?

washingtonpost.com: See story: Reno Asks High Court to Reaffirm Miranda Rule (Nov. 2, 1999)

Joan Biskupic: Good question. And I think the bottom-line is that Miranda is not in danger of being reversed by this court. But the 4th Circuit, based in Richmond, ruled earlier this year that Miranda was effectively reversed by a 1968 federal law. That law, which has never been enforced, said voluntary confessions could be admitted at trial even if suspects weren't warned of their right to remain silent. So that ruling is sitting out there, governing all the people who live in the five-state 4th Circuit.... The Justice Department's brief said the court should review the 4th Circuit ruling, overturn its interpretation on Miranda, and let the landmark decision that has become embedded in American life stand.

Washington, D.C.: Did the justices focus on probable cause as a requirement for police to stop and frisk someone?

Joan Biskupic: A question from someone who knows the court's terms! But no, they didn't refer to "probable cause," as in "probable cause" to arrest someone for a crime. These cases have to do with situations that arise when the officer doesn't have cause to arrest but might have "reasonable suspicion" (another set of legalistic terms) to believe the individual is dangerous or about to do something wrong. So the focus was on what factors should legitimately make a cop suspicious and allow him to stop and frisk a person.

New York, N.Y.: So if a law isn't enforced – like the 1968 law that "overruled" Miranda – does it "count"? Sort of like if a tree falls in the forest and no one is around to hear it, did it make a sound?

Joan Biskupic: That's funny. Yes, it still counts, because at any point a prosecutor could start relying on it as grounds for not reading the Miranda rights, and courts could start citing it (as the 4th Circuit did) when rejecting some defendant's motion to keep a gun or other evidence out of trial. BUT, the law wouldn't count if Congress lacked the authority to even pass it in the first place. And that's what Reno has said: Miranda was a constitutional ruling, and that Congress couldn't overturn it with a statute.

95-North: Hi there. Might you know, or have an idea as to when the Court will hear oral arguments for the Brzonkala-VAWA commerce clause or grandparent visitation cases?


washingtonpost.com: You can find further information on this case in the resources section of our Supreme Court report. You'll find the Brzonkala case on this page.

Joan Biskupic: They'll both be sometime in January. We expect the exact dates to soon be announced ... so watch the court calendar or ask here in another couple of weeks.

Washington, D.C.: I'm a big fan of Bob Woodward's and Scott Armstrong's "The Brethren," their profile of the Supreme Court published in the late 70s or early 80s. It really gave an insider's view of how the court works. Seems like it's time for another such look. Do you know if anyone is working on one? Have you thought about writing a book on the court? Can you convince your colleague, Woodward, to try it again?

Joan Biskupic: People ask about this all the time. One of the problems is that the clerks all clammed up after Woodward and Armstrong wrote the book, and the justices now impose stricter codes of confidentiality.... Woodward, who happens to be the son of a judge, has kept his interest in the court... but has moved onto other subjects for his writing.

Port St. Joe, Fla.: In Lieu of recent events concerning workplace shootings, will the Supreme Court finally interpret the meaning of the Second Amendment?

Joan Biskupic: Not in the near future. We have a few cases working their way up to the justices that implicate the Second Amendment but I don't anticipate the court taking one of them soon. The last time the court considered the Second Amendment's "right to bear arms," in a 1939 case, it said the right applies only to weapons that relate to a "well regulated militia," some sort of organized government group like the National Guard. ... But meanwhile, the battle is really in the legislatures, where elected officials have to decide how much gun control they want, or don't want.

Bedminster, N.J.: There has been a lot of discussion about Illinois v. Wardlow. I am interested in another case argued the same day earlier this week – New York v. Hill. Do you have any information about it? If you attended, what was your impression of the oral argument?

washingtonpost.com: You can find court documents on New York v. Hill on our November docket page, including the New York Court of Appeals opinion and an amicus brief.

Joan Biskupic: No, I didn't stay for that one. It centers on when a defendant might waive his right to a speedy trial under the Interstate Agreement on Detainers. I don't think any of the other dailies covered it either, but you might try to search the web to see if one of the legal trade pubs covered it.

Washington, D.C.: So two more shootings this week – no doubt the 2nd Amendment debate will keep raging. But in terms of personal responsibility, the Colorado case interests me most – in Littleton, where Dylan Klebold's parents are apparently suing the police for not warning people about the danger that Eric Harris posed. Do you think this will get thrown out?

Joan Biskupic: I haven't seen the filing, but it's hard to imagine the grounds for it.

Port St. Joe, Fla: The stop and frisk case, does it have to do with overturning Terry v. Ohio or reinterpreting it or am I way off base?

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

Joan Biskupic: It's a variation on the Terry case. In that ruling, the justices said that police can stop and frisk someone if – after considering all the circumstances of the scene – an officer has reason to believe he is dangerous. The new case focuses on whether flight alone is enough. Some of the justices suggested police should have to consider more before stopping an individual.

Arlington, Va.: Thanks for being so kind. What's happening with Janet Reno? Her Parkinson's seems to be getting the best of her. Shouldn't she go, at least as a farewell gift to the president?

washingtonpost.com: Isn't it unusual for one attorney general to serve for a complete presidential term, much less two? Or do you think people would have interpreted any departure by her as capitulating to criticism?

Joan Biskupic: She has really hung in there. Her Parkinson's is more apparent now, but she says it is not affecting her work. And, despite all the criticism she's taken on Waco, the FBI, the campaign finance investigations, etc.... she's persisted and held onto her office. At this point, with just over a year to go in Clinton's term, I don't anticipate a major change. Any successor would have no real chance to make his or her mark on the office.

Mt. Rainier, Md.: As someone who was brought up with the teaching that 'the police are our friends', I was nonetheless appalled when one justice (Souter, I believe) quoted Proverbs saying the evil flee when none pursue. This person must have led an unjustifiably sheltered existence, and certainly hasn't been reading newspaper accounts. I can readily see that some people are going to want to dodge notice just to avoid the potential harassment. Shoot, might do it myself – a middle-aged white woman.

Joan Biskupic: That was a Scalia quote from a past case. The proverb says, "the wicked flee when no man pursueth." Scalia only jokingly referred to it last week. But he certainly voiced that sentiment throughout the arguments. He was one of the most vigorous in asserting the position that a person's flight should be sufficient to raise police suspicion and justify a stop. ... By the way, Souter was on the other side, saying that if a bunch of police cars descended on a street, "Anyone in his right mind is going to want to get out of the way fast."

Washington, D.C.: With the Senate close to adjournment for the year, what is its record on confirming judges? My perception is that they have confirmed very few and are stalling on the rest.

Joan Biskupic: It's a pretty bad record overall. Several nominees have been waiting years for any action. But I think we'll see a few deals in the next few days as the Senate gets to its crunch time.

Arlington, Va.: If anyone is interested in an earlier and earthier look at the Supreme Court, they should try to find Drew Pearson's 1930's book, "Nine Old Men," which at least gave a perjorative phrase to the court.

Joan, what books would you recommend as a start to understanding the court?

Joan Biskupic: The chief's book called "The Supreme Court: How It Was, How it Is" is very good and accessible for a non-lawyer. I've also recommended some of the recent biographies, of Byron "Whizzer" White, by Dennis Hutchinson, and Lewis Powell, by John Jeffries. Another book that came out a year or two ago, "The Warren Court and the Pursuit of Justice," by Morton Horwitz is a nice, readable work (and slim, just over 100 pages) ... There are also books out there for young people and for students that are very good.... but I don't have any of 'em close at hand right now. Ask about those next week.

Arlington, Va.: The Chicago case seems messy because the police stopped the guy who ran and found a gun which makes the stop a self-fulfilling prophesy. If they had stopped him and hadn't found a gun, he would have presumably been allowed to go. The real question is whether we condemn the method even though it leads to "good" results.

Joan Biskupic: Good point. These cases come up only after police have found some incriminating evidence and want to use it at trial. But the Constitution prohibits arbitrary stops and searches ... and courts have not ruled that the end justifies the means.

Bethesda, Md.: Your story on gay rights was an interesting chronicle of how law involving discrimination and homosexuality is evolving. Is this body of law in particular taking a long time to evolve – longer or shorter than law regarding race or gender for example? What are the most common cases involving gays and rights that make it into and through the courts? Any set for this term on the court?

washingtonpost.com: See story: For Gays, Tolerance Translates to Rights

Joan Biskupic: We don't have any gay rights case up at the court this term. ... And, as to your core question, it seems as if this area of the law is really flourishing now, largely because of cultural changes. Are things moving quicker for homosexuals, compared with the legal progress of racial minorities or of women? It's hard to say. Gay rights advocates would say things should have begun changing long ago. ... And although basic principles are in place for race and sex discrimination, even those areas of the law continue to develop over the years. Consider the backlash on affirmative action.

Orlando, Fla.: How many times can a petitioner ask the court for cert? Can they keep applying after they've been denied?

Joan Biskupic: If your petition has been turned down, you can't appeal again on the same question in the same case. Were you thinking that someone could keep trying the same case over and over, until the justices wore down or changed membership?

Harrisburg, Pa.: For someone not familiar with all the cases this term, are there any major takings or other property-related cases up for consideration?

Joan Biskupic: Nope, not this term. But several lower-court property rights cases are in the pipeline, so stay tuned.

Washington, D.C.: George W. Bush told the Madison Project that he wouldn't hire any gays or lesbians to work in his administration. Is discrimination based on sexual orientation constitutionally OK when it comes to federal hiring? And what is the record of the current court on discrimination law in general (I know that's a broad question, I'm fishing for a broad answer because I don't know much about the topic yet!) Thanks for these chats, btw, they're great!

Joan Biskupic: There is no explicit constitutional protection for people based on their sexual orientation. But in the justices' 1996 Romer ruling they said government couldn't discriminate against gay people simply based on prejudice. The high court said that judges should make sure that any bias against gays had some rational basis. Lower courts have upheld the military's "don't ask, don't tell" policy but have struck down discrimination in civilian government jobs. washingtonpost.com: Full text of the aforementioned discrimination against gays case, Romer v. Evans (1996).

Mt Rainier, Md.: My apologies to Justice Souter for tarring him with the Justice Scalia quote!

Joan Biskupic: Accepted, no doubt.

Port St. Joe, Fla.: Do you think the exclusionary rule will be overturned anytime soon given the court's pro police stance lately?

Joan Biskupic: The court continues to allow exceptions to it, but I don't think it will overturn the basic rule that when evidence has been improperly seized (through a search that violates the Constitution) the evidence can't be used at trial.

Joan Biskupic: That's it for today. Watch this upcoming week for three good oral argument sessions. On Tuesday, the justices will hear a case testing whether universities can make students fund campus organizations that engage in advocacy, such as feminist, environmental or gay groups. Then on Wednesday, the justices will take up limits on the disclosure of drivers' license information and a ban on nude dancing.

Also, even though we've switched to the permanent time of 11:00 each Friday, we'll be doing NEXT Friday at 10 a.m. EST. Just for that day, Nov. 12. Thanks to all who participated today.

washingtonpost.com: Post court stories from this week:

For Gays, Tolerance Translates to Rights (Nov. 5, 1999)
Court Debates Whether Flight Is Probable Cause (Nov. 3, 1999)
Reno Asks High Court to Reaffirm Miranda Rule (Nov. 2, 1999)
Full Court Press: Sparring With the Supreme Court Nine (Nov. 1, 1999)

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