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  •   Consequences Unseen by the Court

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, January 29, 1998; Page A12

    "If the past is any indicator, it seems unlikely that a deluge of ... litigation will ever engulf the Presidency."

    — Supreme Court, May 1997

    With those words, the nation's highest court unanimously voted to allow Paula Jones to proceed with her lawsuit against President Clinton and set in motion the events that today have the White House under siege.

    But their statements in the ruling and during oral arguments earlier in the case reveal how unaware the justices were about the potential consequences of rejecting Clinton's request for immunity from lawsuit until he left office.

    After the court said Jones's sexual harassment claim could go forward, her lawyers began looking for women who might have had a sexual relationship with Clinton. In December they subpoenaed former White House intern Monica S. Lewinsky, whose tape-recorded conversations eventually led to the expanded criminal investigation by independent counsel Kenneth W. Starr. In other words, the Jones case may not directly be creating the current fury, but allowing it to go forward indirectly triggered it.

    "The chickens have come home to roost," said University of Chicago law professor David Strauss, who aided Clinton in the high court case. "Any private lawsuit against the president was bound to become much more than a private case."

    It would have been all but impossible for the justices to have foreseen this unprecedented legal tangle. But they were warned by the president's lawyer, Robert S. Bennett, of the circus atmosphere that could erupt from "the real-world consequences of litigation."

    During oral arguments in January 1997, Bennett warned that Jones's lawyers would dredge up interviews with "all the [Arkansas] troopers" and be snooping around "any time the president of the United States [came] into contact with a member of the opposite sex."

    Justice David H. Souter suggested that such maneuvering might keep Bennett busy, but not the president. And Justice Stephen G. Breyer, the justice who in the May 1997 ruling would be most worried about the distractions on the president, asked last January how any interview with a "non-White House witness . . . kept under seal so it wasn't in the press [would] interfere with the daily workings of the presidency?"

    When they ruled, Justice John Paul Stevens noted that, in the entire history of the Republic, only three sitting presidents had ever been subject to civil lawsuits and those cases were quietly resolved. They rejected "the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation."

    At the core of the decision was the belief that nothing in the Constitution gives the president immunity from a lawsuit for his personal actions. "[I]f the framers of the Constitution had thought it necessary to protect the president from the burdens of private litigation," wrote Stevens, they would have essentially said so.

    The justices rejected Clinton's claim that because the office of the executive is unique and its responsibility so vast it is important that a president devote his undivided time – without the interruption of personal litigation – to his public duties. At every turn, the justices minimized the potential disruption.

    Only Breyer wrote separately to express his concerns about a president being subjected to harassing litigation. "[P]redicting the future is difficult, and I am skeptical," he said.

    In hindsight, however, there was little hint of prophecy in any of the justices' remarks.

    "All over its opinion is evidence of the court's belief that allowing civil claims for unofficial conduct would not so distract the president as to damage the country," University of Virginia law professor John C. Jeffries Jr. said. "I think recent events suggest that the court's optimism might have been misplaced. What's going on now is rich evidence of exactly the kind of distraction that we feared."

    But Jeffries, who backed Clinton in his legal argument, said yesterday it is not clear whether the justices would have voted differently knowing then what they know now. The unanimity of the decision in Clinton v. Jones and its constitutional reasoning suggest that even today a majority would reject Clinton's claim of immunity.

    During oral arguments, Justice Sandra Day O'Connor specifically challenged the notion that a president's effort to avoid political damage should matter. "Does that enter into the constitutional balance?" she asked Bennett. "We have to get back to the basic source of what it is in the Constitution that" might exempt the president from lawsuit.

    "The opinion is quite confident" in its legal reasoning, observed Duke University law professor William Van Alstyne, who joined a group of law professors, opposite Jeffries and others, urging the high court to reject immunity for the president. "In the practical world, what's happening now might have moved one or two votes. But I doubt that it would have moved a majority."

    It is difficult to know what the justices themselves think. People close to some members of the bench say the justices have had little to say about the controversy engulfing Clinton. During Tuesday night's State of the Union address, Chief Justice William H. Rehnquist and the four other justices who attended – O'Connor, Breyer, Souter and Clarence Thomas – sat stoically in their black robes. Even when the president referred to the judiciary in his domestic agenda, the justices did not flinch.

    © Copyright 1998 The Washington Post Company

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