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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Inside the Supreme Court:
      Choosing Cases
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    Friday, August 13, 1999

    Since Supreme Court justices are appointed by presidents and serve lifetime terms, they do not have to campaign for reelection. The justices tend to keep a much lower profile than elected officials, and much of the business of the nation's highest court takes place out of the public eye. Who sets the docket? What goes on after oral arguments? How do the justices reach their conclusions and write their opinions? Do they get along? This week on "Holding Court": everything you've ever wanted to know about the way the court works.

    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 answered your questions about the inner workings of the Supreme Court Friday. The transcript follows:

    Carrollton, Tex.: In the four years after the 2000 election, how many/which justices do you believe will step down? Will Rehnquist and Stevens keep holding on if the new president is an ideological opposite of theirs?

    Joan Biskupic: It's always hard to predict these things. But I think we're likely to see Chief Justice Rehnquist, who's 74 and been on the court for nearly 30 years now, retire. John Paul Stevens, who was named by Ford in 1975 and at 79 is the eldest, is also likely to step down. Sandra Day O'Connor is the next oldest (turned 69 this year) but her retirement seems more of a long shot. She is very active, keeps a brutal speaking schedule. ... And as to your question about ideology, I think the chief, who was appointed by Nixon and elevated by Reagan, would prefer to have his successor named by a GOP president. But politics probably doesn't matter as much to Stevens, who was appointed by a Republican president but has become one of the most liberal justices on today's court. He, more than most, goes his own way.

    Arlington, Va.: Any idea how the gay boy scout case will come out (pardon the pun)? It seems like just the kind of meaningless case they would take. Shame about the dwindling number of cases they handle plus that embarrassing song down in Richmond. You were right, those stripes on his arms are the least of his problems. Glad you seem to take the whole group of them so seriously when they appear more comical or sad.

    Joan Biskupic: You're someone who wandered onto this site looking for the Reliable Source or advice columnist Carolyn Hax, right? .... I'll ignore the tasteless pun and make no apologies for taking the court seriously (most of the time). BUT today is the day to ask about its quirks, what it's like to visit the Marble Palace etc. ... And about the Boy Scouts case... next week, I'll be looking at the legal landscape of gay rights and talking about what's happening now with that ruling from the New Jersey court against the scout policy excluding homosexuals.

    Washington, D.C.: Has the court done anything to increase the number of minority clerks? Do clerks really write all of the opinions? Which justices rely on their clerks the most?

    Joan Biskupic: I think all the attention to the dearth of minority clerks has gotten the justices' attention. I think some of them are making more of an effort to look for blacks, Hispanics, more women. But, many of them still claim that the pool they draw from (prestigious law schools, federal appeals court) doesn't include that many minorities, and they want to stick with that pool. .... And each of the nine justices rely on their clerks to varying degrees, for writing, for research, etc. All the justices but Stevens use the clerks to screen the appeals that come in and to recommend which cases the justices should take. ... But since the justices' votes and opinions generally are consistent through the years, they can't be turning that much of the essential decision-making process over to their clerks, who serve for just a year. Do you have a sense of how well the nine Supreme Court justices get along with one another? In a job with a lifelong appointment, it'd be awfully difficult to work with someone you didn't like.

    Joan Biskupic: Some are definitely closer than others. Rehnquist and Scalia pal around, play cards together. Stevens spends a lot of time at his place is Florida, so he doesn't socialize that much with the rest. O'Connor attended law school at Stanford with the chief justice and they've always been pretty close. ... There have been rumors through the years about individual justices getting ticked off at each other but they all put up a good front, lunch together on oral-argument days and, against the outside world, they definitely close ranks. What is the relationship between the justices and the press?

    Joan Biskupic: Chilly. As a group, they don't show much regard for those of us who cover the court. But on an individual basis, some of the justices will talk (off the record) and seem to appreciate the importance of letting the public know how the court works.

    Arlington, Va.: I have heard that Justice Scalia does not allow his image to be broadcast over the television. Is this correct, and if it is, what are his reasons? I, for one, would like to see a bit more of him on TV... Good chat, by the way.

    Joan Biskupic: Thanks. ... Yes, Scalia doesn't want his remarks televised. Last May he spoke at the Catholic University commencement only on the condition that C-SPAN televise him only as he walked in with the faculty and graduates, not as he spoke. And I don't know why. He is one of the justices who is most suspicious of the press.

    Hopkins, Mich.: If given the opportunity, would you agree to have ALL of the current U.S. Supreme Court justices sit as members of a jury charged to decide the most important personal legal dispute you could ever be involved in?

    Joan Biskupic: I'm not sure I understand this question. But I think the answer is no.

    Providence, R.I.: What was the reaction within the court when Bob Woodward's book, "The Brethren" came out?

    Joan Biskupic: Talk about closing ranks. I wasn't there at the time but what I've heard from my colleague Fred Barbash, who was covering the court then, and what I've read in the court papers of the late Thurgood Marshall, the justices were mighty angry at "The Brethren." Chief Justice Warren Burger was particularly enraged. The justices became more wary of all reporters (as well as their clerks, who obviously talked up a storm) and spent a lot of time grumbling about how misunderstood they were. BUT some of the justices were sources for the book, and it's endured as as important inside look at how cases are decided.

    Washington, D.C.: How would you characterize the justices' relationships with their clerks? Is it a mentor sort of relationship, or research assistant?

    Joan Biskupic: They use clerk more as researchers, writers. Some mentoring likely occurs, given the differences in experiences and ages between the justices and their clerks. But because the clerks are there for just one term and have to quickly get up-to-speed on the cases, it isn't a natural setting for apprentices or real on-the-job training.

    Chapel Hill, N.C.: What was the reaction of the other justices when Rehnquist put those goofy stripes on his robe?

    Joan Biskupic: They laughed.

    Indianapolis, Ind.: Do you know how Rehnquist felt about participating in President Clinton's impeachment trial? It couldn't exactly have been a fun experience – it sure wasn't fun watching it – but what a dream come true for a constitutional scholar to see the Constitution in action.

    Joan Biskupic: That's right. As much as I think it was a bother for him to take time away from the court term and to have to preside over a generally disorganized institution (the Senate), it was a real kick to be there. He'd written a book about two other historic impeachment trials. I can't imagine that he ever thought he would witness one. When it was over, the Supreme Court press corps sent him a letter asking whether he would talk to us about his role, what he thought, etc. He tersely declined.

    Austin, Tex.: The Paula Jones case. You had Robert Bennett, an eminent attorney, against two relatively unknown attorneys from Va., who did not have the resources, experience and Washington, D.C. reputation of Skadden, Arps, to help prepare their briefs and arguments, and they prevailed at the Supreme Court. Does that help to dispel the notion of the Washington super lawyer having an edge in Supreme Court practice (at least that is a perception shared by many)?

    Joan Biskupic: So much goes into it. A good appellate lawyer with experience at the court has some edge in leading the justices to the past cases that would best support his or her position. But I've seen countless lawyers from beyond the Beltway do superbly. And, of course, the fanciest footwork isn't going to help when the law isn't on your client's side or the justices are simply inclined against his position. The reality is that some pretty bad lawyers win their cases, even 9-0, and some stellar ones lose.

    New York City, N.Y.: I heard that Justice Kennedy once was called flipper by his clerks because his changes his mind about cases all the time. Is this true? And since he was Reagan's third choice (after Bork and someone else were not confirmed by the Senate), is it fair to say that Reagan picked him because he would be easily confirmed by the senate and not because he is a brilliant legal scholar?

    Joan Biskupic: Kennedy was indeed derided as "flipper" by some clerks. But I'm not sure if they were his own clerks or those of the other justices. Particularly those who ended up on the losing side after swing-vote Kennedy switched. He's a hand-wringer, has acknowledged struggling with cases, being uncertain about which way to go. But he says this in the context of how seriously he takes his mission ... And about Reagan's choice of him after Bork was defeated.... I think the lack of controversy over Kennedy's past record definitely contributed to his nomination. He's no Bork. But he's no slouch as a scholar either. He knows his stuff.

    New York City, N.Y.: How big is the chance that we get an openly gay justice in the near future?

    Joan Biskupic: Openly gay? Not anytime soon.

    Tunnelton, W.Va.: Do you feel that the liberal Supreme Court decisions of the 60's and 70's concerning individual rights have "fueled the fire" for student unrest in the public schools? Students now feel that everything is "I" "Me" and not "We," "They" as is emphasized in the Constitution.

    Joan Biskupic: Interesting question. ... But if you're talking about all the violence in today's public schools, I think the roots of those problems are deep in many parts of society having little to do with the language of the Constitution.

    New York, N.Y.: Which justice is the fiercest questioner during oral argument? Is there one that would really make you nervous if you were presenting a case?

    Joan Biskupic: They're all tough in their own ways. Souter and Ginsburg are persistent. Can't sidestep answers to them. Scalia badgers. Stevens comes up with unpredictable hypotheticals. Breyer asks long, multi-faceted questions that lawyers seem to lose themselves in. But Justice O'Connor presents maybe the toughest, most focused, persistent questions. And she has a certain stern-ness. She can reduce even the most expert advocates to a little shrimp.

    Washington, D.C.: We always hear about the Supreme Court being "shrouded in secrecy." But the public can go and hear oral arguments, yes? Can you talk a little bit about the justices' decision-making process? How do they release opinions? Do they just read them or is there some sort of explanation that accompanies?

    Joan Biskupic: "Some sort of explanation that accompanies" them? No way. We can get some pretty convoluted 100-page opinions ... and it's up to the reporters to try to lay out what the justices are saying. Most of the court's writing is straight-forward. But sometimes, the justices split from each other on parts of a ruling, the reasoning. It can be hard to digest and explain on deadline. And lower court judges themselves constantly complain about some ruling being difficult to interpret even in the long-run . ... You're right that oral arguments are open to the public. And the opinions are available for the asking. It's the process that's shrouded. We're not sure how the justices reach their decisions. (By the way, when they vote in conference on their cases, it's only the nine of them in the room. No clerks. No secretaries.)

    Waynesboro, Pa.: There seems to be a shortage of decisions dealing with ownership of firearms (Second Amendment issues). Is this because so few cases rise to the level of the Supreme Court, or does the court decline to hear them because the justices are simply afraid to take on the gun-control issue?

    McLean, Va.: What has the Court decided relative to guns and the 2nd amendment? The Second Amendment and the courts was the focus of the July 16 Holding Court.

    Joan Biskupic: No, the justices have rarely looked at the Second Amendment and gun ownership. In recent years that may be because no good, direct case on the issue has come their way, irrespective of any reluctance to review the controversial topic. We'll be watching what they accept for the new term beginning in October and probably revisit the Second Amendment issue on this chat-line in the near future (we get so many questions on the topic.)

    But that's it for today. Thanks to all. Next Friday, we'll look at the legal landscape of gay rights: what's happening now with the New Jersey Boy Scouts case, whatever happened to the debate over gay marriages and state policies (such as the Colorado one that the Supreme Court looked at a few years ago) that stop cities from singling out homosexuals for protection ... and other related issues simmering throughout the country. Here are some Post stories related to some of today's questions. Join us again for "Holding Court" next Friday, Aug. 20 at 10 a.m. EDT.

    Rehnquist to Transform Senate Into Jury (Jan. 7, 1999)
    A New Role For High Court's Stern Taskmaster (Dec. 22, 1998)
    Revisiting Rehnquist's Look at Impeachment (Sept. 18, 1998)
    Court Followers Tensely Await Justice Stevens's Verdict: To Stay or Go? (June 14, 1998)
    Security and the Supreme Court (March 25, 1998)
    From Two Friezes, Great Figures of Legal History Gaze Upon the Supreme Court Bench (March 11, 1998)
    Supreme Court Film Offers Glimpse Behind Justices' Closed Doors (June 17, 1997)
    Supreme Court Follies Brighten Drab Routine (Feb. 21, 1995)
    Behind the Robes, Songs and Whitewater Rafting (Oct. 20, 1994)
    Riddles Carved In Stone (March 17, 1994)
    Papers Afford a Rare Glimpse of Justices' Deliberations (May 23, 1993)
    Separating The Yakkers From The Silent Types On The Court (April 30, 1993)
    The Court Is Back, With a 'New' Look (Oct. 5, 1992)

    © Copyright 1999 The Washington Post Company

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