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Holding Court with Joan Biskupic

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Friday, December 3, 1999

After guns, smoking and the regulation of tobacco products is one of the most hotly debated personal freedom and public health issues in this country. It remains in the headlines as more cities pass ordinances against smoking in public spaces and the Hollywood film "The Insider" focuses on the conduct of tobacco companies. On Dec. 1, the issue travels to the Supreme Court, as the justices hear oral arguments over whether the Food and Drug Administration can regulate tobacco as a drug. This week on "Holding Court:" the government and tobacco.

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 at 11 a.m. EST. The transcript follows:



Joan Biskupic: Welcome back from the Thanksgiving break. The justices steamed through the week, hearing cases on whistleblower lawsuits, dirty cable programs and, of course, the FDA tobacco case. So send in your questions about the specific cases or about the court generally.


Tampa, Fla.: Hello, I am a 9th grade student at Gaither High School in Tampa, Florida. I have been asked by my government teacher to do a Supreme Court docket case. I have chosen to do the Food and Drug Administration v. Brown and Williamson Tobacco Corp. case. I was wondering if you could help me out in anyway possible, and give me your opinion or any helpful information on the case.
Sincerely, Ashley Allred

Joan Biskupic: Well, since you're obviously used to working with the Internet, you'll have an easy time getting background on the case. First, you can look up what the lawyers themselves say about it through our "docket" section on the Supreme Court page. That's where their briefs are. Then you can search for all the stories about the case through news-services web-sites. Finally, the tobacco companies and public health groups have their own sites. It's actually easier than ever to do research today. We used to have to take a bus to the public library.


washingtonpost.com: The docket information, as well as cases listed by subject, can be found on our Supreme Court Resources page.


Washington, D.C.: Will the court determine the false claims act is unconstitutional?

Joan Biskupic: Good question. The actual issue in the Monday case you refer to is not whether the whole False Claims Act is unconstitutional but whether the whistleblower provisions of it are. What the court is looking at is whether the so-called "qui tam" section, which lets citizens sue on behalf of the government for public fraud is allowed. The question boils down to whether the Constitution gives private individuals legal "standing" to bring such a case. ... There appeared to be no consensus Monday. I think some key justices, notably Sandra Day O'Connor, are afraid to upset centuries-old tradition of citizen-lawsuits. Justice Scalia is the one most vigorously opposed to them. There's a lot at stake. These cases have helped the government track down lots of cheats and close to $3 billion in the last 13 years.


Atlanta, Ga.: On Monday, the court heard arguments in the Martinez-Salazar case about the consequences of denying a valid challenge of a juror for cause. The case was somewhat overshadowed by the Vermont Natural Resources argument. How did it go?

Joan Biskupic: This is the case about whether a defendant can get a new trial based on having to use one of his few "peremptory challenges" to get rid of a potential juror who should have been kept off the panel "for cause," because he was so obviously prejudiced in some way. ... And I wish I could tell you how the arguments went. But I and most of my colleagues spent that part of the morning with the court's "orders" list, which also came out on Monday. The case you mention is important, and when the justices rule, I'll write about it.


Arlington, Va.: Joan,

Have enjoyed your weekly chats on the court. Usually only take the time to submit a question when I see something specific regarding your coverage of the courts or the legal system. While generally I thought the article below was well written, I found the choice of words in the highlighted paragraph to contain some bias:

Justice Halts Enforcement of States' Late-Term Abortion Bans

"Dilation and extraction," as the procedure is known medically, involves dilating a pregnant woman's cervix to allow the fetus to partially emerge, after which the fetus is killed by inserting a suction tube into its skull and removing the contents.

Why use the word "contents"? Why not call it what it is, "the fetus is killed by inserting a suction tube into its skull and removing the brain." The way I see it, the folks on the other side of this issue might argue the use of the word "mind" would be more appropriate. While I think there can be reasonable debate on whether a fetus has a "mind," I think even the most ardent "pro choice" folks will admit that the "contents" of the skull of a fetus is a brain. They may not like the choice of wording, but that is my point; you show a bias by softening the impact.

Joan Biskupic: Point well taken.


New York, N.Y.: I realize you don't write the headlines, Joan, and it usually bugs me when people are overly sensitive about "bias," but "Justices Hear Arguments on Cable Smut Restrictions"? Is it just because "smut" is shorter than "adult entertainment"?

Joan Biskupic: I'm sure a headline writer could never have gotten adult entertainment in there. But I don't think "smut" is so bad. Random House defines it as "indecent language." "Porn" would have fit, too.


Washington, D.C.: What's the likelihood that the court will give the FDA jurisdiction over tobacco? I know it's not a state-federal issue, but this court seems pretty hands-off on the government control issue.

Joan Biskupic: I think the likelihood is zip. Many of the justices looked like they were ready to rule against the Food and Drug Administration's effort to control tobacco and stop young people from getting hooked on cigarettes. They had lots of problems with the FDA's 1996 claim that the nicotine in cigarettes is a drug, but they focused a lot on the fact that the agency itself had for decades said it lacked the power and had actually gone to Congress asking for the authority over tobacco. ... The FDA says in response that so much changed in the 1990s and that it was only recently able to get internal industry documents showing how manufacturers treat nicotine like a drug and manipulate its levels for greater addiction.


Newry, Co. Down Northern Ireland: How has the Supreme Court adopted to today's society in relation to the individual compared to when its role was outlined in the U.S. Constitution (1787).

Joan Biskupic: This is such a big question but because it's from so far away I have to take it. ... The court generally views constitutional rights and responsibilities as evolving, so it tries to apply an up-to-date framework for the Constitution that was written more than two centuries ago. But the starting point is always: How did the men who wrote the Constitution understand individual rights? What were they trying to protect? What was it about government power that was feared at the time. Then the justices looked at how society (and government) has changed and how constitutional protections might accordingly be altered. The more liberal view would have the Constitution become more protective of individual liberties and used more to remedy modern societal ills. The more conservative view says that role should be left to the elected legislature.


Washington, D.C.: To follow up on your earlier response on FDA control – do you think that those tobacco company documents showing the manipulation of nicotine could tip the balance? And does the Hollywoodization of an issue, (i.e., The Insider) which brings it more into the limelight, have any bearing on how a case is framed?

Joan Biskupic: No, I don't. I think that those docs and the movie and generally all the attention on this huge public health problem point up the significance of the case. But for the justices, the key question is whether a 1938 law gives the agency the power to regulate tobacco. They'll focus on its words and its history. ... During the oral arguments, some of the justices challenged solicitor general Seth Waxman about how "new" the notion of smoking's dangers really is. The chief asked about the Surgeon General report of the 1960s, and others said, haven't we long known what smoking can do?


Arlington, Va.: I am not a smoker but do know that there are many state laws that limit cigarette purchases by minors and there is also the celebrated warnings on packs and in advertisements. If the court says the FDA may not regulate cigarettes, what is the perceived loss?

Joan Biskupic: The FDA says it's important to have a national standard and way for the federal government to comprehensively try to stop young people from smoking. ... It's interesting that you mention the labeling law. One of the arguments from the tobacco companies is that Congress preempted the FDA authority in this area by itself passing tobacco-specific laws, such as the 1965 labeling law.


Rockville, Md.: If the court invalidates the qui tam provision of the False claims Act would this not essentially emasculate much of the Act's deterrent power. How do these kinds of political-policy issues play into the the deliberations of the court?

Joan Biskupic: Good question. During the oral arguments, the lawyer representing the whistleblower in this case called the "qui tam" provision one of the most effective means of preventing fraud on the U.S. Treasury. And as I mentioned above, it has earned the feds close to $3 billion since 1986. (Another $443 million has gone to the individual whistleblowers who took on the cases.) So, yes, the incentive for people to blow the whistle and the deterrent force would be removed if the court rules against the law. The justices will often ask about the policy ramifications ... and I think those concerns always hang over the case, but when it comes to ruling and writing an opinion, they have to come up with the law and precedent to support their position.


Richmond, Va.: Stevens blocking the enforcement of late-term abortion bans is bound to set off some pretty big fireworks. Any sense of the fallout yet? Also, what's the 7th Circuit's general record on rulings being overturned by the Supreme Court? Given the conflicting opinions of the 7th and 8th Circuits, is it likely the court will address the issue?

Joan Biskupic: I think the odds are good that the court will resolve the conflicting rulings over these "partial birth" abortion laws. I don't know off the top of my head how often the Chicago-based 7th is reversed. It's not a liberal circuit like the 9th, out in California, the hands-down winner in reversals. The 7th's record is mixed. I've heard some lawyers joke that the "7th Circuit is so conservative it even scares Rehnquist," but the 4th Circuit (covering Virginia, Maryland and a few other states) has actually been beating out all circuits lately for hot conservative rulings.


Washington, D.C.: It appears likely after Wednesday's argument that the Court will reject FDA jurisdiction over tobacco. What is happening with the Justice Department's suit against the tobacco companies? Would a Republican president drop the suit?

Joan Biskupic: That lawsuit, in which the Justice Department is seeking payback for the medical costs of treating sick smokers and is accusing tobacco companies of conspiring to defraud the public, was just filed in September. So nothing much has actually happened in it. We're talking years until a trial, if it gets to that. ... And I can't imagine a GOP president trying to drop the case.


Bethesda, Md.: I have heard that as many as three justices may retire during the next four to eight years. Is this true and, if so, who is retiring?

Joan Biskupic: Everything you hear (and that I hear) is pure speculation. I don't think anyone will retire until after the election. Then, it's also dicey. ... Based on the ages of the justices, I would expect Chief Justice Rehnquist and Justice Stevens to be the first two to step down in upcoming years. Then, over EIGHT years, we could see Justice O'Connor also leave the bench. The rest are relative spring chickens in their early 60s and 50s.


Port St. Joe, Fla.: Can the Supreme Court curb, in my opinion the out of control, power of the FDA or would it take an act of Congress? Thanks for this forum – I look forward to it every week.

Joan Biskupic: The court can rule when the FDA has overstepped its power – provided someone has sued on that basis – but the court can't randomly come in and check the authority of any agency. The statutory domain of the FDA and any agency lies with Congress.


washingtonpost.com: Your point about the justices' interpretation of the 1938 law governing the FDA raises an interesting point. Has the age of judicial activism come and gone? Is there another issue on the horizon – like the Internet, for example, or gay rights – in which some judges will interpret laws more broadly?

Joan Biskupic: Interesting question. This court tends to rule narrowly, incrementally. You mention two very hot issues (gay rights and the Internet) and I don't see either of those shaking the majority out of what is a cautious step-by-step approach to disputes and a general resistance to be seen at the lead of social policy. .... The next president should appoint bolder justices, don't you think, at least for news value?!


Jacksonville, Fla.: What significance, if any, is the fact that a cert. petition continues to remain pending on the court's docket for several weeks after the case has been discussed at conference? Is it unusual for the court to consider a petition at conference and not include it on the following Monday's orders list?

Joan Biskupic: Not always. They often hold over some petitions, as justices go back and look at the lower court rulings, reconsider some elements, weigh whether the case is worth taking up. Sometimes, if a case has been pending for a long time, it could mean that the justices are holding it for a related case already accepted for review. How ever the justices rule in that case would affect the outcome of the pending related one. Or maybe the justices have decided not to take the case and one of the justices objects and is writing what is known as a "dissent from denial." It's all so secret. We never know what's going on in the justices' conference until we get some ruling or order and then work backwards using all the clues.


washingtonpost.com: How were the oral arguments in the parochial schools aid case? What is the general feeling of this court on the separation of church and state and whether this applies?

Story: Parochial School Aid Faces Test (Dec. 2)

Information on the case: Mitchell v. Helms

Joan Biskupic: This is the case that centers on a 1965 education law that gives public school districts federal money for computers and other equipment and says the funds must be shared with all private schools in the district, including parochial schools. ... The question is whether it violates the Constitution's limits on public support for religion. My sense is that the justices will uphold the law, and I'm not sure where they'll go with the larger question that could ultimately affect whether vouchers are allowed. The majority generally wants a lower wall of separation between church and state and would permit (more than the courts of an earlier generation) greater government involvement with religious schools. But the question of public vouchers for parochial schools is a tough one and they might want to rule narrowly here.


Joan Biskupic: That's it for today. Watch next week when the justices will take up cases arising out of the Exxon Valdez oil spill and from airbag requirements, among others. And also look for this month's "Full Court Press" Monday on the Federal Page, about the quirks of the court. Thanks to all who participated!



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