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Holding Court with Joan Biskupic

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Friday, December 10, 1999

This week, the Supreme Court agreed to revisit its landmark 1966 Miranda decision, one of the most important cases involving criminal law and rights of the accused. The justices' ultimate decision will have far-reaching effects on police procedure and the way criminal law is passed, and it's possible that the decision will come down to a single vote.

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: The biggest news this week was the court's announcement that it will reconsider its 1966 Miranda ruling. But the justices also delved into two interesting government regulation disputes, one involving air bags, the other, oil tankers and environmental standards. ... And despite the big week for cases, I received the most feedback on a Monday story I did on the peculiarities of the dress code at the court. So send in your questions, on substance or sartorial codes.

Washington, D.C.: Which one do you think will end up being the more controversial case? The FDA and tobacco, or Miranda?

Joan Biskupic: Miranda. When you think of which court rulings really stand for something, really are part of American culture, Miranda is right up there (with Brown v. Board of Education and Roe v. Wade). Also, unlike tobacco regulation (which involves what's written in a statute and is part of a larger federal move against tobacco and addiction), Miranda boils down to what's in the Constitution to protect individual rights and how much should the most vulnerable, most disfavored, among us be covered.

Indianapolis, Ind.: Who are the swing votes on the Miranda case?

Joan Biskupic: Probably Sandra Day O'Connor and Anthony Kennedy. They tend to vote with the right on criminal law issues, but both of them have expressed a regard for the 33-year-old precedent of Miranda. O'Connor once suggested in an opinion that she might not have voted for Miranda back in 1966, if she had been on the court, but that it had become part of the law of the land.

New York, N.Y.: Do you see a possibility that the court could take on the Microsoft case?

Joan Biskupic: If it's not settled at this trial-court stage, it would be years before the justices would even get a chance to take it on... So it's hard to speculate at this point.

Port St. Joe, Fla.: Correct me if I am mistaken, but didn't Congress pass a law that basically invalidated the Miranda decision soon after it was published? I can't recall ever reading of it being used if it was passed. If they invoke that law, could the Supreme Court strike it down as unconstitutional as it goes against their ruling? Thanks and thanks for having this forum.

Joan Biskupic: That's what the new case is all about. Congress indeed passed a law in 1968, two years after the ruling, trying to reverse it and saying that voluntary confessions could be admitted at trial even if someone wasn't read his rights. But the Justice Department has never tried to enforce the law, and many attorneys general thought it unconstitutional. That's the question here: Did Congress have the authority to pass that law or not. It had the power only if Miranda v. Arizona lacked a constitutional foundation. AG Janet Reno argues that the decision clearly is based in the Fifth Amendment, which says no one "shall be compelled ... to be a witness against himself." Translation: You have a right to remain silent. You know the rest.

Washington, D.C.: What's the scuttlebutt on the decision about selling police records? I'm glad to see the court didn't ban all access to them.

Joan Biskupic: This case centered on a California law that gives journalists and others access to police records (the addresses of people arrested and their victims) but forbids their release to companies that use the info for commercial purposes. Unfortunately, the court really didn't take on the big First Amendment question. The majority skirted it by saying that the dispute didn't test commercial-speech rights, rather only a limitation on access to government records. It said that because the company that brought the case (which wanted to sell the records to lawyers, insurance businesses, drunk-driving programs) was only acting as a conduit for the information, it didn't have grounds to challenge the constitutionality of the law. It was a very narrow, procedural ruling that doesn't change anything and left more questions unanswered than resolved.

Washington, D.C.: What was the basis for Stevens' and Kennedy's dissents in the police records case?

Joan Biskupic: They took on the constitutional question, declaring that it was discrimination to say that people couldn't have access to the records just because they were going to turn around and sell them. They said that was a blow for commercial speech rights.

Richmond, Va.: Was there an opinion this week that surprised you? In fact, are you ever surprised by the way justices rule or write their individual opinions, or can you pretty much figure out what they're going to say, if not the exact reasoning?

Joan Biskupic: There are always surprises at the court! Last week isn't a good example, though, because we suspected they would take up the Miranda case ... and the two rulings themselves weren't big deals. Sometimes I can predict the way that justices are going to rule in a case – after all, most of them have been writing for years on particular subjects or disputes – but there are enough variables, unknown factors, to always make it interesting and lead me to hedge my bets.

washingtonpost.com: Joan, can you talk about the court's decision to revisit the 1966 Miranda ruling? The implications are potentially enormous for the practice of criminal arrest and law.

Full text: Miranda v. Arizona (1966)

Joan Biskupic: Yes, this is really big. First, consider how much Miranda is carved into police practice. Every cop (and probably most people who end up in custody) knows that police must tell suspects of their right to remain silent, that anything they say can be used against them, and that they have a right to have a lawyer present at questioning. So, however the justices rule, it's going to affect what happens on the streets and in police stations. Then, consider the legacy of the ruling itself. It's a hallmark of the Warren era, a symbol of a time when the court was aggressively protecting defendants' rights. Now, the Rehnquist Court has definitely pulled back on those protections and strengthened the hand of law enforcement. But this will be a critical test of how far the conservative majority will go.

Raleigh, N.C.: I see the airbag case was argued this week. What was the oral argument like? How did the justices react and question the lawyers?

Joan Biskupic: The airbags case was brought by a woman here in Washington who was hurt when her 1987 Honda skidded out of control and crashed into a tree. She was seriously hurt and sued the car maker for failing to have installed an air bag. But the car was made at a time when federal law and Transportation Dept. policy didn't require it. The justices had a lot of questions about the federal motor vehicle safety law at the heart of the case (and whether that preempted the woman's lawsuit) but there was no overriding theme or sentiment that emerged from their questions.

Arlington, Va.: Settle a debate for me? The current Miranda ruling isn't about whether you HAVE the right to remain silent and the right to an attorney, but whether the police are required to tell you about them, yes? The question becomes then, how are you supposed to know, unless you've faithfully watched Hill Street Blues and Homicide for the past 16 years?

Joan Biskupic: Or Dragnet (for the older people in the crowd). But you're right. You have a clear constitutional right to remain silent and to have a lawyer present. The question in the new case is whether the Constitution guarantees that a suspect be made aware of these rights. .... The Miranda ruling said that prosecutors couldn't use incriminating statements at trial unless the suspect had been told his rights.

Washington D.C.: How many Justices may step down in the next five years and what might that do to the makeup of the court?

Joan Biskupic: This question comes up all the time. I don't expect anyone to step down until after the 2000 election. But then everything is up-for-grabs and any retirements will make a big difference. The court is narrowly divided on many hot topics: abortion, church-state rules, the power of Congress.... The two most likely to retire in the next five years are Chief Justice Rehnquist and Justice Stevens, simply by virtue of their being the oldest, 75 and 79.

Washington, D.C.: Thanks for taking my question. On Miranda, unless my Crim Pro recollection is faulty, I thought that the court had expressly indicated in that past that Miranda warnings were NOT constitutionally required. If that is the case, it seems that Miranda hasn't been good law for a very long time. Why has this issue not come up much sooner? Can it be attributed to judges ignoring legislation, or do law enforcement agencies find that Miranda is a useful tool, allowing them to be coercive, provided they follow the rules?

Joan Biskupic: Your questions go to the heart of the dispute. THe 1966 court never said that the actual wording of the "right to remain silent" guidelines was required. But there is a definite suggestion in the Miranda ruling that the Constitution forbids the use of incriminating statements UNLESS the suspect knew at the time he didn't have to talk. The court wanted to make sure that people weren't forced to confess and believed that there was a risk of that if rights weren't made clear.

Atlanta, Ga.: What's generally the time frame between an oral argument and when the decision is handed down? How do you know when to say, "The decision is expected . . ."

Joan Biskupic: It depends on how hard the case is. But I generally say, in the tough, high-profile ones, that a decision is expected by the end of June. That's when the court recesses and the justices try to finish all the cases by that time. ... When it comes to deadlines, the justices are like the rest of us. They take all the time possible, right up to the last minute. That's why the deluge of opinions comes in June.

washingtonpost.com: There are some big cases on the docket that first week when the court returns in January – the Violence Against Women Act case and the grandparent visitation case. What are you expecting?

Joan Biskupic: Those are excellent cases to mention. The grandparents' rights one is especially topical. In this era of divorce and separation, I've heard from many people who want to make sure they have an opportunity to visit with their grandchildren.... but, then, I've also heard from parents who are afraid courts are going to take away their right to decide what's best for their kids. That case will be argued Jan. 12.

New York, N.Y.: I'm really disappointed by the justices' reaction to the First Amendment question in the police records case. What is with this court and why does it refuse to address the big issues? It's frustrating to see the justices continually side-stepping!

Joan Biskupic: You're not the only one.

Washington, D.C.: Is the tobacco debate likely to be framed as a personal responsibility issue, or is it about money and the influence of corporations?

Joan Biskupic: The case isn't framed in terms of money or personal responsibility, but rather in terms of what Congress wrote into its drug-regulation law about the reach of the FDA authority. (The FDA says it has the power to regulate the nicotine in cigarettes as a drug.)

Long Island City, N.Y.: Joan, this question reveals I haven't read any briefs or really studied the tobacco case, but anyway: What has happened to the Chevron principle of deference to administrative agencies, even when they change longstanding policy? How does that precedent fit or not fit, according to the parties?

(from your pen pal Jack MacKenzie)

Joan Biskupic: This is a hold-over question from last week's tobacco discussion, and I want to answer it because MacKenzie, a pal of lots of us here, used to be a Supreme Court reporter. He's referring to a 1984 case (casually referred to as Chevron because of one of the parties) that says agencies are allowed to make "reasonable interpretations" of statutes. ...... In this case, the tobacco companies say Congress never delegated any authority for tobacco for the agency to interpret (reasonably or not). They contend Congress sought to regulate cigarettes with a series of tobacco-specific rules and preserved its own jurisdiction in this area. The appeals court that ruled last year against the FDA agreed that the agency lacked the authority to enforce the drug-safety statute in question. So the Chevron principle didn't matter.

Bethesda, Md.: Can you talk in any detail about the law involved in this case with the little boy from Cuba? I've heard that legal precedent may be on his father's side, and he could get sent back.

Joan Biskupic: Oh, I wish I knew. This is a hard one, and I'm not up on the immigration law at issue. So I'm going to ask our washingtonpost.com producers to put up some relevant stories that our State Dept. and Justice reporters have been working on.

Joan Biskupic: That's it. Thanks to all who participated. I'm sorry to those of you whose questions have been pending for awhile. Toward the end of the year, we'll try to catch up with many of them. ... Next week, though, we'll do this session on THURSDAY instead of Friday. Same time, 11 a.m. So tune in Thursday.

washingtonpost.com: Thanks for another great discussion. More on the legal questions surrounding the 6-year-old Cuban refugee can be found here on washingtonpost.com.

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