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    The Post's Joan Biskupic on the Supreme Court

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, June 18, 1999

    The Supreme Court issued several controversial opinions during the 1998-99 term, from school liability for sexual harassment and reporter ride-alongs with police officers to redistricting and an anti-gang statute in Chicago.

    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 on the Supreme Court and legal affairs Friday at 9 a.m. The transcript follows.

    Arlington, Va.: Some of the decisions this term, particularly on police searches, once again seem to have eroded many of the decisions of the Warren Court. Were the decisions of the Warren Court that radical, or have the erosions been part of a set strategy by conservatives on the Court?

    Joan Biskupic: There have been several rulings this term strengthening the hand of police, including one in April on car searches, in which the court said an officer may search a passenger's belongings simply because he suspects the driver has done something wrong. ... Now, the Warren era, as you suggested, was known for its expansion of defendants' rights, ensuring the due process of law, right to counsel, right to remain silent when in police custody, for example. I don't consider the erosion of those rights in the 1980s and 1990s part of a "set strategy," but rather reflective of the individual justices who have been appointed by GOP presidents (and even by a moderate Democrat like Clinton) and who are far more judicially conservative than the justices of the Warren Court.

    Washington, D.C.: Can you talk a little bit about the voucher case that the Supreme Court has agreed to hear next term? It appears as though questions about the separation of church and state are likely to be a big issue in the coming months.

    Joan Biskupic: It wasn't actually a voucher case that the court agreed to hear. Rather, the court said it would decide whether taxpayer funds can be used to pay for computers, software and other library equipment in church-related schools. But, however the justices rule could influence an ultimate decision on whether publicly financed vouchers can be used to help students attend religious schools. The case the justices agreed to take this week will be heard in oral arguments late next fall.

    Gaithersburg, Md.: Do you think the Supreme Court will call the Ten Commandment bill of the House unconstitutional?

    Also, do you consider the the judicial system as somewhat of an oligarchy, a small group telling the masses what to do?

    Joan Biskupic: On the Ten Commandments, the Supreme Court in 1980 struck down a Kentucky law requiring the posting of the Ten Commandments in public schools. The court said the law violated the First Amendment's establishment clause because it had no secular purpose. Now, I don't know how likely it is that the House amendment allowing the posting of the Ten Commandments would pass the Senate, be signed by Clinton and become law ... But the court's past decision on the subject suggests it would be vulnerable to challenge.

    On your second question, the judicial system we have seems to work pretty well. Most of the court's work involves the interpretation of statutes and if Congress doesn't like what the court does, it can rewrite the law. On constitutional matters, such as the hot church-state debates, it would take a constitutional amendment to reverse the court. But I think the reality these days is that we have a moderate, centrist court that rules in ways that sit fairly well with the public.

    San Diego, Calif.: How many cases come before the court in a year?

    Joan Biskupic: In recent years, the court has been hearing and ruling on about 80 cases a term. We expect a total of about 75 signed opinions for the '98-'99 session. With only two weeks to go, a dozen rulings remain, the most interesting on protections for disabled people and, separately, the relationship of the powers between the federal and state government. Speaking of police power, the recent ruling that struck down the anti-gang statute in Chicago was an interesting one, claiming that the law gave the police too much discretion. Did you find that decision to be a surprise?

    Joan Biskupic: I wasn't surprised that the court struck down the gang loitering law, because an important 1972 case had suggested cities couldn't crack down on people simply for hanging out aimlessly. But what surprised me somewhat was that two justices in the majority, Sandra Day O'Connor and Stephen Breyer, wrote a concurring opinion outlining ways that cities might still be able to target gang loiterers. They said cities could write a law that focused on people who may intend to actually do harm. If you take that position, with the three dissenting justices, you might have a majority to uphold some sort of anti-gang ordinance in the future.

    New York, N.Y.: Isn't it ridiculous that abortion is a presidential campaign issue, when it's an issue mainly dealt with by the courts?

    Joan Biskupic: Two things: I think that a woman's right to end her pregnancy is simply one of those enduring divisive issues that provokes lots of emotion in America, from both sides. We'll always have that. Also, because it is the president who appoints people to the federal courts, the hot-button issues that are handled by judges become part of politics.

    Paget, Bermuda: Did the Court hand down its decision in the Ortiz v. Fibreboard "limited fund" class action settlement case, from the Fifth Circuit?

    Joan Biskupic: This is an easy one: No, the Ortiz v. Fibreboard case is still awaiting a ruling. And this case, dealing with class-action settlements, is the oldest case yet to be decided. The court returns next Monday. We may see it then.

    Arlington, Va.: What's your take on the court striking down the reporter ride-alongs? Was it met with a sigh of relief or frustration in your newsroom? Does this mean the end of "Cops?" (Please God)

    Joan Biskupic: The court ruled that police can be sued for letting reporters and photographers go with them on raids of people's homes. It was unanimous and the court emphasized the invasion of personal privacy when a third party, having nothing to do with law enforcement, barges in. There was no collective "sigh of relief or frustration" here. My sense was that many reporters believed that homeowners should be protected from such invasions and that there are other ways, journalistically, to find out how police do their jobs. And does it mean the end of the show, "Cops"? A producer said it was unlikely because many of the people who the cops barge in on have provided waivers allowing the shots to be used on TV. They want to be on TV, apparently.

    Washington, D.C.: The court has issued some decisions this year that just strike me as bad law. Are there any decisions the justices handed down this year that you can see being controversial, like Clinton v. Jones?

    Joan Biskupic: Among the most controversial recent rulings was the 5-4 decision in May saying public schools can be forced to pay damages for failing to stop students from sexually harassing each other. Dissenting justices complained that the majority was federalizing the sort of behavior that is commonplace is schools, almost part of a rite of passage. This is another one of those hot social issues (kids, how they treat each other, who's watching them, how responsible schools should be) that evokes a lot of emotion. In the past few years there has been an explosion of legal information on the Web, particularly with circuit courts going online with opinions. What sites do you visit and find most helpful for legal information in your reporting?

    Joan Biskupic: I use many sites and I'm always finding new helpful ones. For cases, I still generally click into Lexis-Nexis or Many courts are now setting up their own sites, and I've been collecting their addresses. We've been trying to link to other legal materials through so that readers not only get the stories, the actual opinions but other supplementary information and expert views on cases ... the one-stop-shopping approach that is becoming common these days.

    Fairfax, Va.: Can you do a little sum up of the ride-along reporters case, and the school liability for sexual harassment?

    Joan Biskupic: Very briefly, on the ride-alongs, the court said that police violate the constitutional guarantee against unreasonable searches and seizures when they let reporters, camera crews, etc. go with them on raids. One of the episodes at the heart of the case involved a Washington Post reporter and photographer who were with federal and county agents when they burst into a Rockville couple's home.

    And in the sexual harassment one, the court said that public school districts that receive federal funds can be held liable when they are "deliberately indifferent" to harassment. The abuse has to be so "severe, pervasive, and objectively offensive" that it makes it hard for the student to get an education. The case arose from a Georgia girl's complaint about a classmate who constantly taunted her and grabbed at her breasts.

    Arlington, Va.: I'll whine a little here. Couple of observations-complaints on media coverage of the Supreme Court.

    1. There is no legal difference between a unanimous decision and a 5-4 decision, yet the media often reports the later as suspect.

    2. IMHO, the media unfairly reports the minority opinion based upon a fairly liberal agenda. Put another way, the Post among others will give the minority opinion prominence and significant quotes-space in an article if the opinion is from Ginsberg or Souter, but not even report minority opinions when they represent the conservative side of the court -Thomas-Scalia-. The minority opinion is the minority opinion regardless of who is in the minority, and highlighting those the Post disagrees with is disingenuous.

    Joan Biskupic: Yes, a 5-4 ruling has as much force as a unanimous one. But a 5-4 decision is far more dramatic. A single justice could have changed the direction of the law. I don't think the media report that as "suspect," rather reporters point out the narrow vote to show how close it was and, for people who are watching cases percolate up through lower courts, a 5-4 ruling may suggest that the decision in the case is vulnerable in a future dispute with slightly different facts, different context.

    Your second point is way off base. I cannot speak for the other media, but the Post never decides whether to highlight the dissenting opinion based on whether it's from those leaning to the liberal side or on the conservative side. In fact, given the individuals you refer to, I bet that Scalia and Thomas actually get more ink, simply because they tend to be more provocative than the other two justices you cited. (I recently did a page-one story that focused only on their views, simply because of the interesting pair they are.) When I'm deciding which quotes to use and where in the story, I think mostly about what will help a reader understand a ruling, its context and its ramifications.

    Arlington, Va.: I've read that the next president will have the opportunity to appoint up to four Supreme Court justices. Aside from Justice Rehnquist, who is likely to step down in the next four years?

    Joan Biskupic: I think those more likely to retire at some point after the year 2000 are the most senior members: John Paul Stevens, who was appointed by President Ford in 1975, and Sandra Day O'Connor, named by Reagan in 1981. Rehnquist first came to the court in 1971 and was elevated to chief in 1986. I'd bet money on his retirement and maybe Stevens's in upcoming years. O'Connor is more of a long-shot. The justices are hard to predict, and a sturdy lot. In recent years, they haven't stepped down until their '80s ... live until their '90s. Thank you, Joan, and thank you to everyone who joined us today. Here are some Post stories that cover some of the topics mentioned today:

    Court Expands Car Search Authority April 6, 1999
    Court to Review Tech Aid to Religious Schools June 15, 1999
    High Court Strikes Chicago Law Aimed at Gangs June 11, 1999
    House Votes to Weaken Senate Gun Show Checks June 18, 1999
    Police Can Be Sued for Letting Media See Raids May 25, 1999
    Schools Liable for Harassment May 25, 1999
    After a Quiet Spell, Justice Thomas Finds Voice May 24, 1999

    © Copyright 1999 The Washington Post Company

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