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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, July 2, 1999

    The Supreme Court's 1998-99 term had its share of controversial decisions, including rulings on states' rights, a class action settlement on asbestos and the Americans with Disabilities Act. Next term, the justices' cases will include aid to public schools, privacy and FDA jurisdiction over tobacco.

    Joan Biskupic has covered the Supreme Court for The Washington Post since 1992, and she is co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court. She covered legal affairs for CQ's Weekly Report before joining The Post. Biskupic answers your questions on the Supreme Court and legal affairs Fridays at 10 a.m. EDT. The transcript follows:

    Washington, D.C.: Did you attend Justice Blackmun's funeral? Is it true that his ashes were carried in a VW bug to the cemetery? What else do you remember about the funeral ceremony? The Post's coverage of Blackmun's funeral:
    Blackmun's Legacy Is Honored (March 10)
    Blackmun Remembered for 'Human Touch' (March 9)
    Justice Blackmun Dies, Leaves Legacy of Rights (March 5)

    Joan Biskupic: Yes, Justice Blackmun's ashes were indeed carried in a VW bug to the cemetery last March. The justice, who was best known for his opinion in the Roe v. Wade case, owned and drove several VW bugs through the years. (I don't think he had one of the new ones though) Another bit of levity from the otherwise-somber funeral was that fellow Minnesotan and humorist Garrison Keillor wrote a eulogy for the man he called the "shy person's justice."

    Washington, D.C.: It must be frustrating to be a dissenting justice and never have anyone cover the opinion you wrote, only the majority vote. What do you think of the way the media deals with dissents? It seems they're only mentioned if particularly vehement.

    Joan Biskupic: Actually, the press likes dissenting opinions, even when they aren't particularly vehement or hot-headed, because they offer a contrary view to the majority ruling (a contrary view with some credibility), and a dissent can give the story more drama. This term, many of the justices went so far as to read parts of their dissents from the bench, which adds emphasis and is a way of saying, "Hey, Listen up!" (We have a story on this scheduled for Monday's Federal Page) And about any frustrations, I think it helps if you're going to be on the losing side to be able to vent some steam.

    Roanoke, Va.: Joan,

    What do you believe are the primary obstacles to U.S. cities that are suing gun manufacturers? Do you think there will be any successes for these cities?

    Joan Biskupic: Cities are increasingly suing gun manufacturers for the costs associated with firearms violence. But it's going to be tough to hold them liable for illegal uses of their legal products. One case that got a lot of attention earlier this year stemmed from a group of families that sued gun makers for shooting deaths in New York. In early February a Brooklyn jury found several handgun makers liable for the seven shootings and awarded the sole survivor about half a million dollars in damages. The graphic in today's Post showed some interesting statistics on the court – the 5-4 voting blocs, alliances among the justices and individual justices' records on ruling with the majority. Those must be questions you hear all the time. Were there any surprises? In your study of the court, do you know of any justices that voted together more often than Thomas and Scalia's whopping 86%?

    Joan Biskupic: No, Justices Scalia and Thomas have voted together more than any other pair of justices during the past five years. Interestingly, though, they have begun to diverge a bit more in their bottom-line judgments and in their legal reasoning. Thomas is writing more separate opinions explaining his distinct rationale (these are called concurring opinions). So, in time, more differences in the statistics might emerge. Also, for the record, the justices who voted least together were Thomas and Justice John Paul Stevens, only 18 percent over the past 5 years (excluding cases that were decided by unanimous votes).

    Washington, D.C.: I understand that under President Clinton there are a lot of seats in the judicial branch that remain unfilled. Is this normal for a president to have so few judicial appointments go through? Clinton can't be the only president with an adversarial relationship with Congress.

    Joan Biskupic: No, Clinton is definitely not the first president to have an adversarial relationship with the Senate (which has the power to accept or reject his nominees). But confirmations have only become more politicized through the years. There are fights going on now over trial and appeals court posts that in earlier years wouldn't have arisen. Judicial nominations have been nearly stalled because of a battle over a trial-level judgeship in Utah, the home-state of Judiciary Committee Chairman Orrin Hatch. While all the controversy shows how political the nominations process has become, I think it also demonstrates how much is at stake. These are lifetime appointments and a president's judicial legacy can outlast many of his policy decisions.

    Bethesda, Md.: Is it possible that the special counsel law would have been allowed to expire even if we, the American people, were never exposed to Independent Counsel Starr?

    Joan Biskupic: There already was plenty of controversy over the independent counsel law before Kenneth Starr began investigating the Clintons and events surrounding the Whitewater land deal. Lawrence Walsh, the Iran-Contra independent prosecutor, was constantly attacked for how long and costly his investigation was. (There have been about 20 ICs appointed since the law went into effect in 1978 after Watergate.) But while these other probes revealed various flaws in the law that was supposed to de-politicize investigations of top officials, and likely would have led Congress to think of ways to change the statute, it was the Starr investigation that sunk it. There is a chart in the Politics section that details independent counsel investigations.

    Anderson, Ind.: In light of the decisions and opinions of Justice Kennedy, do you believe that had Mr. Bork been confirmed that his presence on the court would have made a significant difference in the decisions of recent years?

    Joan Biskupic: That's a great question, given all the hoopla over Bork's failed nomination and the bitter partisan feelings that linger. I think Kennedy and Bork are philosophically aligned on most legal questions that come before the Court. Bork probably would be with the conservative majority, as Kennedy is, on trying to give states more authority. But two high-profile cases in particular would have been different. In 1989 when the Court struck down state laws against flag burning (as violating First Amendment speech rights), Kennedy was with the majority. Bork said publicly he would have voted to uphold such laws. Then in 1995, when the court said states may not set term-limits for their members of Congress, Kennedy provided the key fifth vote for that decision. Bork has said he would have gone the opposite way.

    Arlington, Va.: I've been down to the court to watch proceedings several times, and find it most interesting, despite my lack of a legal background. I was wondering if one of my perceptions was accurate: Every time Justice Scalia prepares to speak, it seems like the presenting attorney is suddenly overcome by what I can only call abject terror, I assume because of Scalia's reputation for having a scathing wit. Do any of the other justices have this kind of reputation?

    Joan Biskupic: Scalia can be quite vigorous and intimidating from the bench. He probably is one of the toughest, never letting the lawyer off the hook. But Justice O'Connor can be that way, too. And even mild-mannered Justice Souter can demand that a fumbling evasive lawyer "just answer yes or no!" The whole setting is quite intimidating: 9 of them against 1 lawyer, who stands at a lectern under the looming, elevated bench.

    Washington, D.C.: I once went to see oral argument at the Supreme Court, and I thought Justice Scalia was clearly a really charismatic guy, though I don't agree with his views at all. Which justice, past or present, do you think it'd be most fun to have a beer with?

    Joan Biskupic: Not Justice Scalia. A couple of questions on last week's states' rights rulings:

    Washington, D.C.: I'm still trying to understand the state's rights decisions issued at the end of the term. What happens if a state or state university infringes a patent? Is it true that the state can't be sued under the 11th amendment?

    Washington, D.C.: Ms. Biskupic,

    Regarding one of the latest "states' rights" cases – doesn't not being able to sue a state for violating federal labor laws, for example, just mean loss of the individual's right to fair labor practices? In other words, does this particular ruling benefit citizens?

    Joan Biskupic: These are good questions. The laws themselves, protecting against patent infringement and guaranteeing fair wages, still stand. And if a state violates them, the federal government can still go after the state, either in court or in some regulatory way. BUT, the recent court rulings said that a private individual could not sue over the violation of one of those federal rights. For example, a company that has accused a state of infringing its patent can't get to court. Similarly, a state worker who claims that the state is shorting him on overtime wages can't sue the state for the difference. The Supreme Court based its rulings on constitutional protection for state immunity. Dissenting justices said the majority misinterpreted the Constitution and also complained that a federal right is not much good without a remedy.

    Berkeley, Calif.: Reporters often use language suggesting that the Supreme Court has ruled on the merits of a case when all it has done is decline to hear the case. You have done this over the years yourself. Why do reporters do this? Is it for ease of exposition or because they think most readers will not understand the distinction? Doesn't it do the court a disservice?

    Joan Biskupic: No, we are vigilant about reporting it right. Whenever the court declines to hear a case (as it does for thousands of appeals each term), we write that the justices let the lower court ruling stand and we often make a point of saying that, by refusing to take an appeal and leaving a lower court decision intact, the justices are not setting a national standard. This is a very important point with many of us who have covered the court for a long time. We understand that often when the justices deny a sensational case, some other people write that the court "ruled." And you may have read some versions that short-handed, inaccurately, what the court did, or you might have seen "ruled" wrongly in a headline. ... One final point, however: We sometimes make a big deal of cases the court has declined to hear. That is because the court's action, while small, can be big in context. When the justices refused to hear an appeal of a religious-school voucher case it meant that the issue would continue to simmer throughout the states and remain politically hot.

    Washington, D.C.: I had the opportunity to attend oral arguments not too long ago, and I have to say I was dismayed by the lack of interest and conduct of certain justices. In particular, it appeared Justice Thomas needed a pull-out sofa as he could not seem to remain awake. Do you think that cameras in the Supreme Court would help keep the justices on their toes, and remind them what a lifetime gift they have received by being on the bench?

    Joan Biskupic: Hey, I'm all for cameras in the court. But I also have to say that you can't always judge a justice's level of interest by how often he or she asks questions. Clarence Thomas is the quietest of the group now. But Justices William Brennan and Thurgood Marshall also asked very few questions from the bench. ... Every now and then a reporter will claim he saw a justice fall asleep on the bench. I have never seen it. That was our last question for Joan Biskupic. Thanks to everyone who participated today. Join us again next Friday at 10 a.m. EDT.

    © Copyright 1999 The Washington Post Company

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