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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, July 9, 1999

    The Supreme Court's 1999-2000 term is set to become a forum for issues like personal privacy and public school aid, and possible changes in the justices' 5-4 voting split remain to be seen. In the meantime, controversial cases make their way through the judicial system, and judges face concerns such as activist juries.

    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:

    Alexandria, Va.: I've heard some criticism of modern courts – not necessarily just Rehnquist's – for taking on a much lighter docket than past courts. You said the '98-'99 term is expected to yield about 75 opinions. Didn't the Warren court issue decide many more cases?

    Joan Biskupic: There's a striking difference compared with just a decade ago. The Supreme Court is hearing about half the number of cases heard then, 75 signed rulings this term compared with 150 ten years ago. A number of factors account for the drop, including that this court tends to be overall conservative, wanting issues to "percolate" through the lower courts and declining to reach out to address hot questions; that Congress in recent years removed much of the court's so-called mandatory jurisdiction (that is, there are very few cases that the justices MUST hear); that the lower courts are dominated by generally moderate and conservative judges who are in step with the high court's views. So the justices would be less likely to take up an appeal from a circuit court.

    By the way, it takes four votes in the justices' secret conference to accept a case, then five to actually decide it.

    Topeka, Kan.: If taking medications is considered to remove a person's protection under the ADA, then didn't the justices contradict themselves in the Olmstead case? The individuals in Olmstead are taking medications that apparently allow them to live independently in a homelike setting. The court's decision on Olmstead v. L. C. came out the last week of the term. The full text of the decision is available at the FindLaw site. The Post story gives specifics about the disability rulings.

    Joan Biskupic: Actually, those two ADA cases pertained to two different parts of the law. The first one you refer to, involving whether people whose medication allows them to get along in the workplace like everyone else, concerns whether a person can even be considered "disabled," that is, whether he can even claim that the law protects him from discrimination on the job. The justices ruled 7-2 that a person isn't "disabled" if his medicine or corrective lens or other measures essentially allow him to operate as someone else on the job. The other case you mention (known as Olmstead) tested what a state must do for people who are clearly mentally ill but who can live in a community homelike setting, just as well as in an institution. The court said it's illegal to keep someone in an institution if doctors have said community placement is appropriate. Another really interesting tobacco case this week, as a Florida jury awarded damages in a class action lawsuit by sick smokers (see story). Do you sense a growing sympathy or antipathy of consumer class-action lawsuits in the court system, or is it this particular high-profile issue? Is this an issue that will likely see some jury activism?

    The Supreme Court overturned a settlement in a class-action lawsuit over asbestos during the last week of the term.

    Joan Biskupic: Yes. Jurors are definitely more willing to hold the industry liable, and some have even said after their verdicts that they wanted "to send a message" to tobacco companies. Since just last year, juries have four times said cigarette makers could be financially responsible for smokers' injuries. Before July 1998, in decades of tobacco litigation, only twice had juries found against the industry – in 1988 and 1996 – and both those verdicts were reversed on appeal. Now, some of these new ones are on appeal, too, and the Miami case is still playing out. But jurors definitely seem more emboldened against the industry and sympathetic to smokers, not matter how much those smokers contributed to their own health problems.

    Philadelphia, Pa.: Are there statistics available about how frequently a particular justice votes in the majority? Also, are there statistics which depict how often two pairs of justices vote with each other? Thank you.

    Joan Biskupic: At the end of every term, we publish stats on the voting alliances. And we've seen that over the past five years, Justices Thomas and Scalia still vote together the most: 86 percent during the past half-decade (not including cases that were decided by 9-0 votes). The next closest pairing (in terms of frequency together) is Ginsburg and Souter, at 78 percent. What two vote together the least? Justices Stevens and Thomas, only 18 percent of the time in non-unanimous cases. And they do represent the opposite ideological poles of this court. You'll find this year's statistics on voting patterns in our Supreme Court report.

    McLean, Va.: What rulings have the Supreme Court made relative to the 2nd Amendment and gun control?

    Joan Biskupic: The Supreme Court has said very little about the Second Amendment, which refers to the "right of the people to keep and bear arms." The last ruling directly addressing what it means was in the early part of the century, and the justices essentially said the amendment doesn't give individuals a right to unrestricted gun ownership. The court has allowed Congress and the states to put numerous limits on gun possession and sales. There has been constant controversy on just what the amendment protects, and the late Chief Justice Warren Burger once wrote in an essay how it was a myth that the Second Amendment protected an "individual" right to bear arms.

    Washington, D.C.: Since the inclusion of a larger number of women and racial minorities as Supreme Court law clerks is not mutually exclusive with immensely qualified, high-caliber clerks, do you think any of the justices will take active steps in diversifying their law clerks?

    Joan Biskupic: The diversity, or lack thereof, among the Supreme Court's law clerks is another controversial topic. The NAACP and some minority members of Congress have been trying to pressure the justices to hire more black, Hispanic and other minority clerks. I think the controversy has definitely heightened the awareness of the justices to the importance of looking at a broad range of applicants, and I expect to see the number of minorities and women hired climbing each year. But at a hearing in March on the Hill, both Justices Thomas and Souter (who were testifying on a separate topic) said they will still look foremost for the cream of the crop from top law schools, whether that includes minority applicants or not. But certainly, as the writer notes, the pool of top candidates and the pool of minority and women candidates are not mutually exclusive. Read the Post story on a 1998 protest at the court over diversity.

    Pierre, S.D.: Regarding the court's decision in the gambling advertising case, was the decision a surprise and what other areas will likely be affected by the decision? The Post story details the court's decision to strike down a federal law that placed limits on broadcast ads by casinos. The full text of the decision is available on FindLaw.

    Joan Biskupic: No, the ruling striking down a federal law that restricted broadcast advertising by casinos was not a surprise. Mostly, because during oral arguments earlier this year the justices had criticized the numerous exemptions in the law for other types of gambling; when government restricts First Amendment rights, the court looks for consistency and compelling reasons. But as to its impact, the decision will immediately allow television and radio advertising of slot machines, blackjack and other casino games. Overall, it strengthens free speech protections for all advertising and shows how skeptical the court is of laws designed to keep consumers in the dark about information related to vices like gambling and drinking.

    Washington, D.C.: The Florida tobacco case this week seems to illustrate the arbitrariness of the justice system. A smoker may get compensated in Florida, but not in my state (Virginia). Doesn't this issue demand a national solution – i.e. higher cigarette taxes to deter smoking and compensate ill smokers?

    Joan Biskupic: That's a good point, and I've heard lots of similar complaints. The Florida case is unique particularly because it went forward as a class-action lawsuit. Many other judges in other states have said the group of people complaining about smoking-related injuries is too diverse to be a single class. State laws differ in many other ways, too. For example, one of the other recent smoking cases was from Tennessee, which has a law that says if a plaintiff is partly responsible for his injuries, he can't win any money damages. So a Memphis jury that found that a man with lung cancer was 50 percent responsible for his illnesses, at the same time that the cigarette company also caused his injuries, couldn't award him any money for his health injuries.

    New York, N.Y.: Thursday's execution in Florida led to the killer bleeding all over himself. Does this fall into the category of "cruel and unusual punishment" and do you think death penalty critics will be galvanized by this episode?

    Joan Biskupic: That was a gruesome case. But, as much as it outraged death penalty critics, I don't expect it to necessarily produce more opponents of capital punishment. The public generally accepts this ultimate punishment – I think most polls have shown a public approval rating around 75 percent for awhile. And on the Supreme Court there is not a single justice who opposes the death penalty on principle. It's not like earlier days when Justices Brennan and Marshall, and then Blackmun, dissented from death penalty cases because they believed it outright cruel and unusual punishment.

    Oklahoma City, Okla.: Dear Ms. Biskupic:
    Justice Souter has been a consistently liberal Supreme Court Justice for the past several years. He consistently votes with the liberal block of the Court, joining Justices Stevens, Ginsburg, and Breyer in numerous 5-4 decisions. What reason can you give for his votes in this regard. I recognize that he and Justice Ginsburg did join the majority in the recent ADA cases of Sutton and Murphy.

    Joan Biskupic: I think the reality is that Souter is simply more liberal than billed by the Bush Administration. He was appointed in 1990 and had had only a few months experience as a federal appeals court judge before that. So there was little record to go on. Although his judicial philosophy has emerged over time, even during his confirmation hearings he sounded much more moderate than he had been characterized. Finally, I think Souter feels a special bond to the late Justice William Brennan (a liberal stalwart), whom he succeeded and befriended. Souter is no Brennan, certainly, but he is closer than predicted. It seems that many courts have a specific case or a major issue that they are known for – Brown v. Board of Education, Roe v. Wade, etc. What do you think the Rehnquist court will be known for?

    Joan Biskupic: I think we will have a few more years of the Rehnquist Court, but at this point it's known not for a particular ruling but for its emphasis in series of decisions strengthening states' rights, at the expense of Congress – trying to limit the reach of federal government on the domain that was once the states'. Also, this court has in several unprecedented rulings restricted appeals for Death Row inmates and other prisoners, trying to bring finality to sentences. This court also brought Americans the 1992 Casey ruling, which affirmed abortion rights. But Rehnquist wasn't in the majority and, as important and controversial as that opinion remains, it's not seen as a particular signature of this court.

    Pittsburgh, Pa.: Which justices are the most likely to retire and when do you see the next retirements occurring?

    P.S.: Used your CQ book in my con law class, the students enjoyed it.

    Joan Biskupic: I think those most likely to retire are Chief Justice Rehnquist, who was first appointed by Nixon in 1971, and Justice Stevens, who was named by Ford in 1975. ... But I don't think we'll see any retirements until after the 2000 election. A nomination would get too caught up in politics before then, and the justices know that. That was the last question for Joan Biskupic. Thanks to everyone to participated today.

    Here are some Post stories covering some of the topics mentioned today:

    Supreme Court Limits Meaning of Disability June 23, 1999
    Cigarette Firms Lose Fla. Class Action Suit July 8, 1999
    High Court Overturns Asbestos Settlement June 24, 1999
    The Court's Alliances July 2, 1999
    Lack of Diversity Decried; 19 Arrested Oct. 6, 1998
    More Gambling Ads Likely After Court Ruling June 15, 1999

    Join us again next Friday at 10 a.m. EDT for Holding Court.

    © Copyright 1999 The Washington Post Company

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