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Holding Court with Joan Biskupic

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Thursday, December 16, 1999

The Supreme Court's recent actions involving the Miranda ruling and regulation of tobacco continue to captivate court watchers. After "Holding Court" focused its last two sessions on the justices' decision to revisit the 1966 criminal law landmark and on the court's skeptical inquiry into cigarette regulation, readers continued to have questions. So join us this Thursday (a day earlier than usual) as we take a final look, for the time being, at two of the hottest cases this term. "Holding Court" will also look at the justices' action this Monday, rejecting yet another case related to the divisive school voucher question.

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 and thanks for joining us a day earlier this week. We're going to take on some of the questions about Miranda and tobacco regulation that keep coming in, as well as new queries about life in the Marble Palace. The justices are in a recess but the rest of us are here and working hard.

Cincinnati, Ohio: How often does the Supreme Court grant hearings putting off executions?

Joan Biskupic: Rarely, but it's happened a lot in Virginia recently. On September 1, it happened just two hours before convict Lonnie Weeks was to be executed. The court held a hearing on the merits of his case earlier this month and will issue a ruling sometime in the next couple of months.

Cambridge, Mass.: I know this is too late for this week's dialogue, but I wonder about your answer to the question about the Microsoft case. You say that it would be years before the Justices would get their hands on it. Isn't there a special jurisdictional statute governing antitrust cases brought by the government that allows a direct appeal to the Supreme Court from a district court decision if one of the parties applies for such an appeal and the district court certifies that the case is of general public importance (or something like that)? Couldn't that procedure bring the case to the Supreme Court level as early as next term?

washingtonpost.com: From the mailbag.

Joan Biskupic: It could, if all that were to happen. But the Justice Department would have to request it and the judge would have to certify it--two elements that our chief Microsoft reporter says are unlikely at this point. If the case doesn't settle in upcoming months, legal experts think a verdict would likely first be appealed to the circuit court before heading to the Supremes.

Washington, D.C.: I for one am glad to see that the Justices are concerned about arrestee's and crime victim's privacy. Let's hope they do the same in the driver's license info case from South Carolina.

Joan Biskupic: You're talking about the case that tests whether Congress had the power to pass a law that said states can't make public some of the info that people provide to get drivers' licenses. The legal question is more one of federalism, states' rights, but I think most of us are interested in the core privacy concerns, as you are. How easy should it be for people to get names, addresses, birth dates from motor vehicle divisions?

Germantown, Md.: On Miranda, will the Supreme Court also rule on the constitutionality of the 1968 Statute which seems to challenge the court's ruling?

Joan Biskupic: Yes. That's what this case is all about: whether that 1968 law effectively overturned the Miranda ruling. It's never been enforced, but Congress passed the law intending to allow confessions to be used at trial even when suspects weren't warned of their right to remain silent. The key legal question is whether Miranda v. Arizona was a constitutionally based decision (required under the 5th Amendment guarantee against self incrimination) and therefore could only be reversed with a constitutional amendment (not a federal statute).

Arlington, Va.: I thought that incriminating statements only had to be suppressed if they were made during a "custodial interrogation" where the suspect had not been read his Miranda rights. I think that's an important distinction.

Joan Biskupic: Yes, the court said a confession or other statements couldn't be used at trial unless the suspect had been warned of his rights during a "custodial interrogation." That means "questioning initiated by law enforcement officers after a person has been taken into custody." The idea was that the scary atmosphere of policy custody might make someone talk when he really doesn't want to.

College Park, Md.: Hello Joan,

When I moved from D.C. to Maryland and brought my car with me, I had to pay excise tax in Maryland on the car's value.

Isn't such an interstate import tax unconstitutional?

Joan Biskupic: Whoa. This one catches me off-guard. But I don't think so. It seems to me every time I've moved and had to re-register my car, I've paid a bundle. You should call the Maryland motor vehicles division and find out what you're being charged for. ... Just another reason not to move out of D.C.

Washington, D.C.: What's the latest on Justice Ginsburg? How's she feeling? Does she seem herself?

Joan Biskupic: Good question. Most of you readers probably remember that Justice Ginsburg had emergency surgery for colon cancer in September. After her surprising appearance on the first Monday in October, she's been there every single day, been an active questioner, continued her speaking engagements and been seen at the theater and other social engagements. So, she apparently is back to her old self.

Great Falls, Va.: In your opinion, who do you think writes the best opinions on the court? What do you like about their style?

washingtonpost.com: What about the best opinions in court history? There are some justices who are really known for the way they wrote.

Joan Biskupic: First question first. Justice Scalia is the most interesting writer. His opinions are filled with intriguing allusions, metaphors, old and contemporary quotations. And he calls it as he sees it, he doesn't mince words. The guy's a hard case and many people disagree with his judicial philosophy but he's a master with the pen.

And, as for past justices, Holmes comes first to mind. As for particular cases, Brown v. Board of Education would be at the top of most lists. It's so short and it says so much.

Towson, Md.: First, how do I get in to hear the oral arguments? Do I need tickets? Second, the way I read the Circuit Court's decision in Dickerson, the police will still be advised to give Miranda warnings since they are included in two of the "voluntariness" factors that the law (Sec. 3501) sets forth. So, isn't the law simply adhering to the request of the Supreme Court in Miranda (1966), while at the same time closing the technicality loopholes that hinder effective prosecution?

washingtonpost.com: Full text: Miranda v. Arizona (1966)

Joan Biskupic: On visiting the court, you don't need tickets, but you do need to stand in line to get into the few dozen seats reserved for the public. Arguments begin at 10 a.m. and folks start lining up an hour or two earlier. For really big cases, the line has begun at midnight.

As I understand the '68 law, which has yet to be enforced or tested, it says as long as a confession was "voluntary" it could be admitted at trial, even if the Miranda warnings weren't given. ... So, yes, police could still be encouraged to give such warnings; it's just that any lapses wouldn't bar the confession from being used. Some people argue that that would undercut the spirit of Miranda and the mandate that people should know they don't have to talk.

New York, N.Y.: Loved the piece on the "dress code" at the court. Who gets taken to task most often? Reporters or lawyers? Do spectators ever get reprimanded?

Joan Biskupic: No one escapes the chief justice's watchful eye. But I think reporters have been reprimanded the most. The lawyers who show up typically wear dark business suits for their work anyway. And the rules aren't as strict for the folks in the spectator seats. ... By the way, I'm going to talk about the dress code and other quirky customs at the court for the session we're doing Dec. 31.

Arlington, Va.: I was interested in the status of and possible conflicts of interests for Supreme Court justices' wives, particularly Virginia Thomas of the Heritage Foundation, referred to as Ginny by several Republican senators during the confirmation hearings. If she or her group is involved with conservative causes, such as Washington Legal Foundation, which litigate, shouldn't he recuse himself?

Joan Biskupic: I don't think so. Justice Ginsburg's husband is a tax lawyer and that doesn't stop her from deciding tax cases. These days, many of the justices' spouses lead active business lives. Virginia Thomas's situation is buzzed about in this political city, but I've never heard anyone suggest the justice should recuse himself because of her activism.

Indianapolis, Ind.: Have all of the court's cases been scheduled for the year?

Joan Biskupic: No, we'll be hearing arguments through April, and right now the court has put out schedules only through February. There's no date yet, in fact, for the Miranda dispute. Also, whatever appeals the justices accept in January will still fall in this term. Beginning in February, any new cases will be scheduled for next year's term.

Washington, D.C.: I thought it was interesting that the Court appointed a University of Utah law professor to defend the constitutionality of 18 U.S.C. 3501. Is the Justice Department going to stay on the sidelines in this case? Doesn't the Justice Department have an obligation to defend the constitutionality of federal laws?

Joan Biskupic: You're referring to Paul Cassell from the University of Utah, who is known in scholarly circles as a critic of Miranda. He wrote a brief on behalf of the Washington Legal Foundation urging the court to take the new case and siding with the 4th Circuit's rejection of the 1966 landmark. ... A Justice Department lawyer will present the administration's position at oral arguments: that the 1968 law should never have been passed in the first place, that COngress lack the authority to reverse a constitutionally grounded ruling.

Washington, D.C.: Sorry to be thick in the head, but let me get this straight: the Miranda case will not end up in taking away the accused's right to hear their rights read to them, correct?

Joan Biskupic: That's not a thick-headed question. This is confusing stuff. The core question goes to what confessions can be admitted at trial. The Clinton administration and those who think Miranda was based on a constitutional right to remain silent say that confessions or other incriminating statements cannot be used against a suspect UNLESS he was first told that he had the right to remain silent, that anything he said could be used against him, etc. The 1968 law didn't say that cops shouldn't read such "rights." What it said was that the test was voluntariness, that is, if the confession were given voluntarily it could be used at trial, even if a suspect hadn't been warned of his right to remain silent. No matter what happens, a person will still have the right to remain silent. He might not have to be told it, but the core right not to be forced to incriminate yourself is in the 5th Amendment.

Durham, N.C.: When will the "partial-birth abortion" cases get decided by the Supreme Court? Will Justice Stevens's stay be appealed to the court?

Joan Biskupic: The justices haven't announced yet whether they will take up the merits of these cases. That should come sometime in the next two months. A few weeks ago, Justice Stevens blocked the enforcement of Illinois and Wisconsin laws that banned this type of late-term abortion. That stay wasn't appealed and will be in place until the full court resolves these cases one way or another... by either taking up the dispute (scheduling it for oral argument later this year) or by letting the lower court rulings stand.

washingtonpost.com: Looking ahead to January, what's your take on the Violence Against Women Act case? Who is arguing the case, and how is it being presented?

Joan Biskupic: This is an interesting case for lots of reasons. First, it plays into crime fears and victims' rights. But it will also test the larger question of how much authority the feds have in the states ... the breadth of Congress's power to pass a law addressing domestic violence, rapes and other street-level crime. It will be heard Jan. 11. I believe Solicitor General Seth Waxman is arguing for the government, to have the law upheld. But I don't know yet which other lawyers, representing the other parties, will be presenting the case to the justices.

Concord, N.H.: Crack into left field.

Obviously you need to be at the right place at the right time. But the schooling is the primary determinate if you even get a shot at being a justice. What are those schools and why are they set-up as such?

Joan Biskupic: Where did they go to school? The chief got his bachelor's and law degree at Stanford. Justice Stevens, a great Midwesterner, went to the University of Chicago and Northwestern. O'Connor, to Stanford. Scalia, Georgetown and Harvard. Kennedy, STanford and Harvard. Souter, Harvard. Thomas, Holy Cross and Yale. Ginsburg, Cornell, Harvard, Columbia. Breyer, Stanford and Harvard.

95-North: Hi Joan. Thanks for the info on tickets. I'm a current law student and plan to go see the Brzonkala arguments after all the Commerce Clause doctrine that's been drilled into my head!

I'm interested to know your thoughts on how the Dickerson decision, upheld or not, will impact curriculums. My Procedure class spent a significant time on it and Miranda, and I'm personally interested to see how it comes out. May certainly change a lot of syllabi!

Joan Biskupic: Yes, no matter how the justices rule in the Miranda/Dickerson class, it will get new space in the con law and criminal procedure casebooks. ... My prediction at this point is that the justices will uphold Miranda.

Washington, D.C.: On the conflicts question – wouldn't that be like saying that Justice Thomas would have to recuse himself from cases involving sexual harassment accusations? Or Hugo Black recusing himself from civil rights cases? Don't the justices have to just take them as they come? What would cause a justice to recuse himself or herself?

Joan Biskupic: Your question raises an interesting point ... It is up to the justices to say when they have a conflict of interest. .... It rarely happens. It occurs mostly when a justice has a financial stake in a party to a case, for example, O'Connor recuses herself when AT&T is at the court. .. One non-financial situation that comes to mind is from the Watergate era. Then-Justice Rehnquist didn't take part in the Nixon tapes case, because he had worked with John Mitchell and other WH defendants when he was at the Justice Department.

Washington, D.C.: Since it's not so reliant on technology (not even an official Web site), I imagine the court isn't in a stew over Y2K. Does the issue touch the court at all?

Joan Biskupic: I haven't heard any buzz about it. And they really are tech-deprived. Very few computers in the building can even access the 'Net. ... Some of the justices pride themselves in being old-fashioned. Souter particularly. He'd probably scoff that he doesn't even know what Y2K stands for....

Joan Biskupic: That's it for today. We're going to skip next week, but we'll be back on Dec. 31, 11 a.m., to take up the customs at the Supreme Court, the dress code, the Christmas tree in the Great Hall, etc. Until then, happy holidays to all, especially to Lisa Todorovich, the producer of "Holding Court," who deftly handles the incoming questions and smartly adds the citations for cases and news stories that See you all on the 31st.

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