Wednesday, May 20, 1998
From sexual harassment to executive privilege and the line-item veto, this year's Supreme Court term is full of monumental cases. Washington Post Supreme Court reporter Joan Biskupic discussed the decisions of the nation's most powerful court with our users today. The transcript follows.
Baltimore, MD: Is it really necessary to keep the Supreme Court in the regal manor that they have become accustomed. It seems to me that this is a gross misappropriation of tax dollars. Why can't they just work in a normal environment? Do they do anything on their own or is all work still done by clerks?
Joan Biskupic: First, the Congress, president and Supreme Court all conduct their business in beautiful marble and stone buildings, and the justices are indeed surrounded by a lot of the trappings of high office. But this is a centuries old tradition. The court building they use now, which is across from the Capitol, was built in 1935. As for whether their clerks do all the work, the justices say that isn't the case. Most of the justices rely on the clerks for first drafts and for the bulk of the research. You can often tell how much of the writing is done by the justices, individually, by the tone of an opinion. Justices Stevens and Scalia, for example, have their own distinctive voices.
Alexandria, VA: Why is it that reputable news organizations continue to do what every first-year law student learns NOT to do in the first month of school to draw substantive conclusions from the U.S. Supreme Court denying a cert petition? Is it a genuine lack of understanding of the appellate process, or do you have some other explanation?
Joan Biskupic: This question comes up often. The Washington Post does not believe that the denial of an appeal sets any national policy, and indeed, we usually write that near the top of a story about such court action. We also believe that you never know for sure why an appeal was spurned: possibly the justices agree with a lower court ruling, possibly there was some procedural flaw in the case, or the facts were not quite right for setting national policy. However, there are some denials of petitions that we make a big deal of because of the underlying issue involved, for example, affirmative action or abortion. In some cases, lots of people are watching to see if the court is going to take up the dispute. The topic and the fact that the justices were not going to intervene and resolve some important national dilemma was in itself very newsworthy. One example of this was the Supreme Court's decision not to take up a big college affirmative action case from University of Texas. While the justices' action was not a ruling and did not set national policy, it was extremely controversial and worth our front page.
Providence, RI: To what degree do you sense that personal antagonisms or ideological alliances among the individual justices color the decisions ultimately reached?
Joan Biskupic: I do not think that personal antagonisms affect a justice's actual vote or the substance of an opinion. But it can affect the tone of an opinion. Justice Scalia has on occasion criticized Justice O'Connor's approach to a case in fairly nasty terms.
Norfolk, VA: In your opinion, which of the justices appointed in the last six years has been the most surprising, contradicting predictions by pundits as to their likely ideological leanings?
Joan Biskupic: Justice Souter is the prime example of the phenomenon you describe. He was appointed by George Bush in 1990, and John Sununu at the time described him as a "home run" for conservatives. And, indeed, Justice Souter started out pretty conservative in his votes and opinions. But through the years, getting his own grounding and the court itself changing a lot (through retirements and new justices), Souter has ended up being one of the more liberal members of the bench today.
Washington, D.C.: Is there any chance that Chief Justice Rehnquist will retire before Clinton leaves office? I seem to remember he was having a lot of medical problems a couple of years ago.
Joan Biskupic: This is an important question because if the chief were to retire, it would give Clinton his third appointment (a rarity for presidents) and a chance to name someone to the powerful center chair of the court. While it's always difficult to predict these things, I think that it's unlikely the chief will step down before Clinton leaves office. His health has improved in recent years, following back surgery, and he actually seems in prime form with a solid core of conservative justices to side with him on issues he believes important. Rehnquist, who was appointed by Nixon in 1971 and has always been one of the most outspoken justices on the Right, is also one of the most partisan. People close to him think it is unlikely, barring serious illness, that he would give Clinton a chance to replace him.
When I attended an oral argument at the Supreme Court recently, it appeared that Justices Thomas and Breyer were trading jokes and sharing comments. Could it be that these two justices who seem to share nothing in common are friends?
Joan Biskupic: Good observation. They remind me of school boys sometimes, whispering back and forth, elbowing each other. (Scalia and Souter, who sit together on the other side of the bench, sometimes are like this, too.) But Breyer is a talkative, engaged justice and I think he sometimes cannot help but want to quietly comment to his seat-mate, Thomas. And I think that they are friendly off the bench, too. Thomas has said publicly how much he enjoys having Breyer, who came on in 1994, on the court.
Alexandria, VA: Which of the justices is most likely to don a pair of bunny ears and dance the boogaloo?
Joan Biskupic: Hmmmmm. How should I answer that question? I guess the first thing that comes to mind is what kind of person would even ask it. ... The Chief Justice has put gold stripes on the sleeves of his black robe, in a bit of whimsy, but he has never resorted to any bunny ears.
Frederick, MD: If an opening happened soon, are there any names out there being considered as nominees?
Joan Biskupic: I think the conventional wisdom is that if Clinton gets a third appointee, federal appeals court judge (2nd Circuit) Jose Cabranes, of Connecticut, would be at the top of the list. If he gets to name a chief justice, he might consider elevating Ruth Bader Ginsburg who was his first appointee and who is only the second woman justice.
Plano, TX: What do you expect to see with respect to the Secret Service's assertion of "Protective Privilege"? Do you think it is a viable argument? When do you think the issue will ultimately be resolved? While Clinton is still in office?
Joan Biskupic: This is a hard call. The justices have not taken up a related case that would help predict the outcome. The only "privilege" dispute before the court now involves attorney-client (Swidler & Berlin v. U.S.)and tests whether the privilege (keeping such communications confidential) should dissolve after the client dies. This case arises out of Whitewater prosecutor Ken Starr's effort to get the notes of a conversation former White House counsel Vince Foster had with his lawyer before he committed suicide.
San Juan, PR: With regards to the public television decision, the dissenting opinion said that there should be objective criteria outlined to determine which candidates merit invitation to debate. Did the three dissenting judges propose a criteria?
Joan Biskupic: In his dissent (Arkansas Educational Television Commission v. Forbes), Justice Stevens indeed emphasized that there should be "pre-established objective criteria" set out so that candidates would know what sort of case they would have to make to a public TV station. He did not give specific examples but his implication was that the station would have to specify the levels of public support or campaign financing that would be required so that a candidate could demonstrate his or her "newsworthiness" or election "viability".
U.S. Citizen in Doha, Qatar: I understand that the Supreme Court spends little time in hearing cases, in a very structured, controlled environment. How can issues that affect the entire nation be decided in such an environment? Why not spend more time to understand the issues?
Joan Biskupic: Oral arguments are held on Mondays, Tuesdays and Wednesdays and last an hour per case. They are very controlled but hardly scripted. The two lawyers who stand at the lectern do not know for sure what each of the nine justices is going to ask. While this might seem like a small window of opportunity for each side to make its case, remember that for weeks the justices supposedly have been reading the written briefs in the case. The justices say that they make up their minds from what's written, rather than from what's actually said-- which for some of those flustered lawyers is a good thing. Chief Justice Rehnquist has said that oral arguments help focus certain parts of a case. The arguments can also be used by the justices themselves to quarrel with each other and telegraph back and forth their own views of how a case should be decided.
Centreville, VA: Do you find any substance to the charge that the court often "makes laws" instead of interpreting the law?
Joan Biskupic: This question often plays out on the court itself, between the more ideological justices on the Right and the Left. In any given case, the justices are supposedly interpreting what a law or a part of the Constitution says. But inevitably, the losing side and people outside the court who don't like the outcome can say that the majority has stretched the law to beyond what legislators wrote into it. And in statutory cases, while it is the high court that decides what the law says, if Congress doesn't like the ruling, it can always change it.
Miami, FL: Some years ago there was concern about the dwindling number of cases accepted by the court. Have they picked up the pace at all during Clinton's terms? Does it matter?
Joan Biskupic: The justices now take about 80 or 90 cases. Ten years ago, they were hearing about 150. It is tough to generalize on how it matters because it varies in different areas of the law, and the justices are constantly taking up new cases and issuing rulings, even at a slower pace. The shift gives more power to the federal appeals courts whose decisions are allowed to stand (for example, that University of Texas case I cited earlier means that the policy in the Southwest's 5th Circuit is very much against affirmative action). The high court's reluctance to enter the fray also brings uncertainty to areas of the law where there are conflicting lower court opinions. Justice Byron R. White, who retired in 1993, was a strong advocate of deciding more cases, particularly where there where splits in the decisions of circuit courts of appeal. Before Ken Starr (who was solicitor general under George Bush and then a private appellate advocate) became Whitewater prosecutor he wrote a column complaining about the court taking fewer business cases and chalking it up to young law clerks who didn't know much about the law. (Supreme Court Schedule)
Atlanta, GA: Does the recent same-sex harassment decision carry over to employment discrimination? Does it mean by implication that an employer cannot discriminate in hiring/firing based upon sexual orientation?
Joan Biskupic: The justices ruled that federal law against sexual harassment goes beyond the predictable situation involving workers of different sexes, to abuse of a man by another man and harassment of a woman by another woman. And, yes, this does cover employment discrimination. The case arose in the context of Title VII, which covers behavior on the job. But the court skirted the question about discrimination based specifically on sexual orientation and said that anyone who claims harassment still needs to meet the test in Title VII that he or she is being harassed "because of sex." During oral arguments in this case, some of the justices suggested that this test may be hard to meet if workplace in question were all-male or all-female. How would someone show that he was being singled out for abuse because he was male? In the case at hand (which now returns to lower courts for hearings), a man on an off shore oil rig sued for sexual harassment because of physical and mental torment by his boss and co-workers. But there were only men on the rig. So it will be interesting to see how this case (Oncale v. Sundowner Offshore, et al.), brought by a man named Joseph Oncale, will be resolved.
Arlington, VA: Have you read Closed Chambers, the behind-the-scenes book about the Court? If so, what were your impressions and what, if any, has been the reaction among Court insiders?
Joan Biskupic: Yes, I read this controversial book. The Post wrote a story last March about how this former clerk, Ed Lazarus, and his tell-all book, had enraged former clerks and justices. As a journalist, I'm glad to have the book because it is so hard to get any insider information from the place. (The papers of the late Thurgood Marshall at the Library of Congress are the best source for recent times.) As for the reaction from the court, many people there think Lazarus betrayed the institution and compromised his oath of confidentiality. He says he did not and that all the juicy stuff he writes comes from reporting he himself did after he left the chambers of Justice Blackmun in the late 1980s. I don't think that I or any other reporter without the credential of a past clerkship would have had such access or been able to dig up such an account.
Washington, DC: In your opinion, has the presence of women on the Court made a difference?
Joan Biskupic: Of course.
washingtonpost.com: Thank you for joining us today, Joan.
Thank you. And watch this June for the court's remaining big decisions.
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