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Holding Court with Joan Biskupic

Holding Court
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Friday, November 12, 1999

This week, the justices of the Supreme Court heard oral arguments on two first amendment cases – one involving free speech on college campuses and the other, a highly anticipated conflict over a nude dancing ordinance in Pennsylvania. In addition, the court examined a case involving the Driver's Privacy Protection Act of 1994.

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 on Fridays. This week, talked about the cases before the court at 10 a.m. EST. The transcript follows:

Joan Biskupic: Welcome to another edition of "Holding Court," an hour earlier than usual, so if any of you are just tuning in, send your questions pronto. It was a week of spirited oral arguments at the court, on student activity fees, drivers' licence privacy and nude dancing. During one half-hour period (in the student fees case) the justices peppered one of the lawyers with more than 60 questions!

It was also a week that offered a bit of the justices' thinking on the death penalty and protracted delays from appeals. Over a vigorous dissent by Justice Breyer, the court refused to take up the question of whether an inmate who spends nearly two decades on death row can claim it's cruel and unusual punishment.

College Park, Md.: Hello Joan,

Has the Supreme Court ever ruled on the constitutionality of extremely long prison sentences?

To me, it seems cruel and unusual – ridiculous even – to sentence someone to a period in prison longer than the lifetime of the longest-lived human.

Joan Biskupic: The Eighth Amendment bans cruel and unusual punishment and excessive bail and fines. The Supreme Court has interpreted that to mean there has to be some proportionality between the crime and the sentence. You can't get life in prison for passing bad checks, for example. But in 1980 the court ruled by 5-4 that someone could get a mandatory life sentence as a repeat offender (under what I think was a Texas "three-time loser" law), even if the crimes were relatively petty and nonviolent. .... In many of the cases that you hear of someone getting double life-sentences, a murder or other brutal crime has occurred.

Columbus, Ohio: Re: Southworth vs. UW Board of Regents.

The court seemed to have a particular issue with the use of referendums to approve funding for student groups. Having participated in the student fee funding process at the University of Wisconsin (I chaired the Student Services Finance Committee for over a year), my perception of this process is that it can be both extremely difficult, and also quite easy. A group must either get 2,000 signatures to be placed on a ballot (difficult), or the student council or SSFC can place the group on the ballot (easy). In WISPIRG's case, they went the difficult route and were successful. Other groups have gone the easier route and have also been successful. Our perception of our own system is that a referendum is the MOST democratic process possible, for each student can be responsible for its being placed on a ballot, and its approval. One of the justices was quoted as saying that the First Amendment is set up to protect the viewpoints of the minority, and a referendum system instead protects the viewpoints of the majority. My question is: What sorts of court precedent apply in the case of referendums? Do they support the statement mentioned above?


washingtonpost.com: Full text of the 7th Circuit opinion and the petition for hearing en banc: Southworth v. Grebe (1998)

Joan Biskupic: That's an interesting question. The core of the case addresses whether students can be forced to pay "activity fees" for groups that engage in political advocacy. One of the key questions is how money is divvied out. If it's handed out in a neutral way that doesn't favor a particular set of views over another, the program has a greater chance of surviving the First Amendment challenge. But if certain groups are favored, then the university has a harder time claiming it's "viewpoint" neutral, just another part of the school's broad academic mission. That's why the referendum feature struck some of the justices as strange. If money is given out based on a student vote, won't that favor popular groups over minority ones? .... BUT, as I understand it, that is really a small part of the UW program. The justices acknowledged it, and the assistant attorney general who was arguing the case at one point urged the justices to set-aside in their minds the WISPIRG funding in assessing the whole program. As for court precedents, since the fees question is new, the justices have never looked at referenda on campus as part of the issue.

Bethesda, Md.: The case involving the Drivers' Privacy Protection Act is intriguing, especially after reading your report on the arguments this week. It's no secret that this court has a track record for limiting federal reach into state issues, but this particular issue seems like more than just an undue process burden forced upon the states. This boils down to a determination of responsibility for the safety of U.S. citizens. Does this fall strictly upon the states or does the federal government have enough of an interest in protecting us to justify legislation? I suppose the answer depends on who the enemy is (ourselves in this case v. a foreign enemy, in which case the answer is clearer).

My question: does common law exist that sheds light on this discrepancy? I got the impression that this issue was covered during arguments but I don't know anything about what cases were used in support, if any. Maybe you can give me an idea of how it was argued before the court.

Thanks again for doing this, by the way.

washingtonpost.com: You'll find detailed information about Reno v. Condon, including the Fourth Circuit opinion, briefs and petition for cert on the November docket page of the Supreme Court Special Report. The oral argument took place on Wednesday, Nov. 10.

Joan Biskupic: The arguments focused somewhat on the federal interest, that is, why the government had to step into something that is arguably a local matter. Solicitor General Seth Waxman stressed how all sorts of personal drivers' data could be distributed nationwide and how vulnerable people would become (to stalkers and other criminals). But, the main question that concerned the justices was not, to use your words, who the "enemy" was. Rather, the focus was on state authority and how this federal program infringed. The justices didn't seem to agree with South Carolina that the act was "commandeering" state resources. But they did seem concerned that the feds were meddling in something that was pure state businesses, drivers' records.

Washington, D.C.: Why have you repeatedly referred to Condon v. Reno as a "privacy" case in your TWP articles on the case?

The case involves privacy only superficially. There is no 4th Amendment claim, for example. The case is actually about the Commerce Clause and the 10th Amendment. Why not make that clear for readers?

washingtonpost.com: Story: High Court Hears Privacy Case (Nov. 11)

Joan Biskupic: It's a privacy case as far as average people are concerned (will their names, addresses and telephone numbers be sold?). Congress saw it that way, too. The law itself is known as The Driver's Privacy Protection Act.... But on the constitutional question, no, it doesn't involve the 4th Amendment, and I don't think anyone here has ever said it did. It is indeed a 10th Amendment question of whether the feds had authority to order states not to sell some of the information. When I write stories, I try to explain the constitutional significance but I also want to relate the issues in more personal, topical ways. And in our electronic age, there's no way not to refer to the privacy issues at stake here.

Washington, D.C.: What will the chief justice be speaking about during his visit to the Dickinson School of Law of the Pennsylvania State University this evening?

Joan Biskupic: Gee, I'm not sure. The court hasn't released a text yet... He sometimes talks about what makes for good oral advocacy, sometimes about how Congress has federalized too many local crimes, sometimes about how lawyers should stop to smell the roses. Not sure where he's headed in this one.

washingtonpost.com: The nude dancing case this week seems to have taken place largely off the radar screen of most people. How does this case differ from past cases regarding the First Amendment and nude dancing ordinances?

The opinion of the Pennsylvania Supreme Court Western Division is available in PDF format on the November docket page.

Joan Biskupic: Actually it asks many of the same questions that the justices considered in 1991 when they looked at an Indiana nudity law. Basically the court has said that nude dancing is subject to the First Amendment ('cause it's a form of expression) but that community interests in safety and morality can be overriding. The balancing test is not easy to apply; the 1991 ruling is muddled. This new case from Erie, Pa., could clarify when cities can ban nude dancing. But, there's a chance the justices won't reach the merits because the exotic club that first challenged the ordinance has closed.

Hattiesburg, Miss.: When a court of appeals decision directly conflicts with controlling Supreme Court authority which is directly on point and has not been overturned, and a petition for cert. points this out, and the court still denies cert., isn't that like overturning past decisions by implication? Why does the court repeatedly refuse to hear such cases? Is there any way to improve the chances that the court will grant cert.?

Joan Biskupic: This is all in the eye of the beholder. You may think that the facts of the case are exactly like the previous one, and that the lower court ruling conflicts with a clear Supreme Court one... But you'd be surprised how often the justices can rationalize how that isn't the case and that there is no need to intervene in the lower court dispute. ... When a petition is denied, it's not a statement on the merits of any past rulings. Mostly because we don't know why the justices refused to take up the appeal. Maybe they thought the particular case was moot, had procedural flaws... or maybe even though you think the lower court opinion conflicts with the high court, they might think it's just a variation on the same theme. It's frustrating all around.

Fairfax, Va.: I attended the oral arguments in the Southworth (student fees) arguments on Tuesday. My impression was that Justice Kennedy was very skeptical and negative toward the University's position. When I read your article, you quoted the one thing that Justice Kennedy said that seemed pro-University. Do you think that he was generally negative to wards the University's position, and that the one quote was out of sync with everything else he said that day, or did you perceive him to be less negative to the University than I did?

washingtonpost.com: Story: High Court Hears Debate On Student Activity Fees (Nov. 10)

Joan Biskupic: Your perceptions are interesting. I quoted Kennedy in two ways, first, on his skepticism about the referendum and whether the funds were distributed in a neutral way, and second, on his reference to universities being places of great debate since "ancient times" and the importance of various groups speaking out. Overall, I thought he was more skeptical of the university's position. So I agree generally with your view. I included his reference about the tradition of debate because I thought it revealed part of his thinking and would help readers understand more broadly what's at stake here.

Columbia, S.C.: I've done some rudimentary research on the Supreme Court, but I was shocked to hear how aggressively the court pursued South Carolina Attorney General Condon during the Reno v. Condon DPPA case earlier this week. I had thought the argument was on the state's side; however, after reading about the oral arguments, I'm not so sure. Is there ever any way to tell from oral arguments how the court might eventually decide a case?

Joan Biskupic: South Carolina Attorney General Condon had a hard time answering many of the questions. Although this is generally a states' rights crowd, the justices properly want a lawyer to be able to defend his own position. The drivers' privacy act is not like the other fed laws that have been struck down, and I think the justices were frustrated that Condon couldn't more clearly explain what was uniquely unconstitutional about it. But that might not matter. If a majority believes that the law impinged on the states, Condon will win, no matter how much he fumbled last week.

Hampton, Ga.: In regards to the recently argued Reno v. Condon DPPA case, did the court spend any time questioning the advocates about the possible mootness of the case since Congress changed tied the provisions of the bill to highway finding? If the court had indeed thought the case to be moot, would they still allow oral arguments and issue a short statement later, or still issue a full opinion and then judge the case moot?

Joan Biskupic: Excellent question, and the mootness issue was indeed hinted at. Justice O'Connor questioned whether the discussion about Congress's power to regulate interstate commerce (the grounds Congress cited as authority for passing the act) was "academic," given that federal lawmakers had recently adopted a provision that ties the disclosure provision to a state's receipt of transportation funds, so the law can be anchored in the constitutional spending power. Waxman responded that while that's true, the provision was in an appropriations bill that is good for only one year. So, ultimately, the court would have to address the interstate commerce question. Justice Stevens joined in that there may be questions about the law's validity under the spending clause, too. But then they moved on.

Washington, D.C.: What's your opinion on the judicial clerkship process? You know, judges are beginning to review applications now, earlier than any time in history. Judges are hiring students to draft their decisions with only one year of law school grades. Isn't that strange?

Joan Biskupic: Maybe, but at the Supreme Court, a justice doesn't actually take someone on until he or she has finished law school and has clerked for a lower-court judge. So there are other references and criteria to assess beyond early academics. Much has been made about the inexperience and immaturity of the clerks as a whole, but the system works for the justices.

Washington, D.C.: You've talked many times about cameras in the courtroom, and how at least one justice said he'd allow them "over his dead body." But I notice C-SPAN covers speeches and conferences on the court quite a bit, which means the justices, like it or not, are more visible. Any idea how they feel about that? Granted, they're public appearances, not court sessions.

Joan Biskupic: I think it's wonderful when the public can see a justice under any circumstance. They have so much power. There are only nine of them. C-SPAN has aggressively tried to keep up with the justices' schedules and to get them on camera whenever possible. You've probably seen many of those Saturday night programs. Justice Scalia refuses to allow cameras into his events. But Justice THomas is often on television, as is the chief. Justices O'Connor, Kennedy, Ginsburg and Breyer, also. Since their audiences (at the events themselves) mostly tend to be academic, even deferential, I don't think the justices feel threatened by it. I also think some of them take their public profiles seriously and like cluing in average people on how they approach their work.

Arlington, Va.: I've noticed that when you write about cases involving gay families, you almost always put words like parent, family, marriage, and even domestic partner in quotes. For example, in last week's story about gay rights, you wrote:

[M]ost gay people become "parents" by adopting the child of a partner who happens to be a biological parent.

Why are gay parents not parents, but "parents"? Surely legal adoption would entitle one to be a parent without quotes.

As I said, I've noticed this in many of your other stories, and it gives the impression that gay families -not gay "families"-, don't deserve to be described in the same terms as other families.

Will you in the future give some thought to your use of quotation marks and the subtle slights they convey?

Joan Biskupic: Noted. Some of it is a matter of Post style. Some isn't. But thanks for bringing it up.

washingtonpost.com: The question that mentioned common law raises an interesting point. Does there exist a body of actual "common law" in this country? Do some states recognize certain common law principles while others don't?

Joan Biskupic: There is no such thing, really, as federal common law, but there is a "common law" in the states arising from their own courts' judgments over time. So when disputes arise in the states, a local court will look to how judges in the state previously ruled on similar disputes. Even though we think of federal judges doing a variation on that (looking at how other federal courts have ruled in similar cases), they are not looking to a specific body of law that courts have developed. Rather, they are relying directly on the text of the Constitution and federal statutes themselves. ... Heavy-duty but interesting stuff!

Joan Biskupic: That's it for this week. Thanks for all the questions. There were so many substantive ones! Sorry, I didn't get to more (and for the person who keeps asking about the land boundary dispute, I'm looking it up) ..... We'll be back next week at the regular time, 11:00. The Supreme Court returns on Monday, but then is in a short recess. So next Friday we'll take on the broader topic of gay rights and how the law regarding lesbians and gay men is changing across the country. Thanks to all who participated today.

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