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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, June 25, 1999

    As the Supreme Court's 1998-99 term ended, the justices added to their list of controversial decisions, including this week's rulings on states' rights, a class action settlement on asbestos and the Americans with Disabilities Act.

    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 10 a.m. EDT. The transcript follows:

    Washington, D.C.: Do you think Congress will do anything to amend the ADA in the upcoming years to clarify the ADA's definition of "disability" and reverse the court's interpretation, particularly in light of the EEOC and Dept. of Justice guidelines the court refuted in its opinions? The court limited the scope of the Americans with Disabilities Act in two decisions earlier this week.

    Joan Biskupic: I think advocates will definitely try to get Congress to amend the 1990 law protecting people with physical and mental impairments from discrimination. I am not sure how successful they will be; it took several attempts earlier this decade for Congress to reverse the effects of court rulings that narrowed Title VII job bias law. But many disabilities rights groups have already begun taking their concerns to the Hill. And Sen. Tom Harkin, a key sponsor of the 1990 law, said that it WAS Congress's intent to cover all impairments, even those that can be improved with medicine, glasses and other measures. I expect he will take a lead with any attempt to change the law to broaden its coverage.

    Pittsburgh, Pa.: What happened to the Bossier Parish voting rights case? This case, which the court heard in April, revisits a 1997 Supreme Court decision on school board redistricting that had been appealed from the D.C. District Court. The court announced Thursday it would carry over the case into next term.

    Joan Biskupic: This case from Louisiana, regarding a redistricting plan that diminished minority voting strength, was held over for the term that begins Oct. 4. Rarely will the justices carry over a case, but it happens and when it does, it usually reflects the difficulty of the issue and how divided the justices are. They likely couldn't get a majority to answer the key questions about the voting rights law in question and the Attorney General's role in screening potentially discriminatory district boundaries.

    Normal, Ill.: I was struck by the solidarity of the opinions in the three states' rights cases decided on Wednesday. Many of the opinions this term have been a fragmented collection of concurring in parts, and dissenting in parts. In these cases all five in the majority accepted the court's majority opinion and all four in the minority accepted the main dissent.

    This suggests to me that states' rights is the clearest ideological dividing line on the court. Don't you think so?

    Joan Biskupic: If there's one issue that binds the five conservative justices, and the four more liberal ones, it's the debate over congressional and state powers. The Rehnquist majority firmly wants to rein in congressional power and provide greater protection to the states. So the five justices in that bloc (Rehnquist, O'Connor, Scalia, Kennedy, Thomas) easily join a single opinion. Conversely, the one topic that always unites the four others (Stevens, Souter, Ginsberg and Breyer) is opposition to how that majority is interpreting the Constitution and curtailing the power of federal lawmakers.

    Takoma Park, Md.: As this term winds to a close it seems to me to be more obvious than before that there is a deep philosophical rift between Justices Breyer, Stevens, and Ginsberg and Justices Scalia, Thomas, and Chief Justice Rhenquist and they seem to be attacking each other's views more strongly in their opinions and dissents. Do you think that things are becoming less congenial between these two groups and are strong divisions like this commonplace throughout the history of the court?

    Joan Biskupic: This question follows somewhat on the last. There is indeed a deep rift between those conservative justices and the liberals on the powers of the states and those of Washington. It's a fairly arcane and intellectual debate, but one that could have great consequence for federal rights and state protections. All nine of the justices take it very seriously, and the divisions between them appear not only in the heated language of their opinions but in the opinions they read for the bench. In a relatively quite, sedate, mild-mannered place, the dissenting justices effectively blew their top over the majority's bolstering of state sovereignty.

    Minneapolis, Minn.: I am disabled and drug- (med) free. I work; I have rights. The ADA is a façade; that was my conclusion in 1993.

    Deep pockets drive the legal environment. Employers put big money into lawyers fighting against hiring disabled. Question: Is there any way (reasonably) effective for the disabled to voice dissent short of a boycott of both medications and medical care, that could change the minds of the corporate butt-kissing Supreme Court?

    Where is the common sense that these medications that mitigate the conditions? All medications have side effects: drowsiness-hyperness, lack of memory, etc. People are impaired by the medications themselves.

    Note: edited for space.

    Joan Biskupic: That last point, about how medications can help people who are disabled but do not end all the effects of their impairment, was made by several advocates for the disabled. But the justices   seven of them in the majority – said that Congress did not intend to cover people whose disabilities could be eased in some way, so that they could get along as most other people on the job. They likely don't see themselves as "corporate butt-kissing," rather not reading into the law something that Congress didn't write into it.

    Arlington, Va.: Do you have a sense that the justices who are most likely to retire in the near term have an eye on the 2000 election as they contemplate who might appoint their replacements in the future? In particular, with Bush's early popularity, and an already right-leaning court, might Justice Stevens retire before the election to allow Clinton the appointment?

    Joan Biskupic: My sense is that no one will retire before the 2000 election. First, they all seem healthy enough and content in the job, to various degrees. Also, there's a belief among some of the justices that a election-year nomination only gets bogged down in politics. Election-year nominations have been drawn out in the past, leaving open a seat, a key seat, when you consider there's only nine of them. We're not in the year 2000 yet, but it feels like the campaigns have started.

    Fort Lee, N.J.: What will this week's opinions on states rights do to remedies granted under federal statutes such as the discharge of debt you receive after filing bankruptcy?

    Joan Biskupic: That's still an open question. The rulings this week will now be interpreted in the lower courts, in particular cases. But one indication that the 3 specific rulings (on topics involving fair labor law, patents and false advertising protections) could stretch to bankruptcy is that on Thursday, in a brief order, the justices set aside a lower-court decision that let bankrupt debtors sue state agencies that try to collect from them.

    South Bend, Ind.: Dear Ms. Biskupic:

    Has the court granted cert. to Brzonkala v. VMI or any other of the suits involving the constitutionality of the Violence Against Women Act?

    Joan Biskupic: Not yet, but that case from a local Virginia school is working its way to the justices. I hope they do grant it; it's a hot topic and one that has been the subject of various conflicting views among lower court judges. Sometimes the cases the justices refuse to take make almost as interesting a statement as the cases they choose to hear. Can you explain some of the justices' reasoning for turning down certain cases? Are there any the court turned away this term that surprised you?

    Joan Biskupic: This question comes up a lot. And unfortunately the justices never give any reasons when they turn down a case. Sometimes, the facts of the case don't make it a good vehicle, so to speak, for resolving a major national question. Sometimes, the justices aren't ready to bite off the issue; they want it to "percolate" up through the lower courts, let the judges below develop records on the topic and work out some of the dilemmas. Sometimes, all the lower appeals courts will be of the same mind on the question, so the justices will feel no need to intervene. More interestingly, there are some instances in which a few justices may want to vote to hear a case (it takes just four votes) because they don't like how a lower court ruled, but they are afraid to take the case because they might not be able to get a majority (an additional fifth vote) to rule the way they want. They'd rather not have a contrary national policy set. So there are sometimes "defensive" votes to deny cases.

    Arlington, Va.: Don't you think those stripes on Rehnquist's robe and his generally surly demeanor have lowered people's respect for the court? Sure, they don't have a Frankfurter, but do they all have to be a bunch of weenies? (pardon the pun)

    Joan Biskupic: Another high-brow question! Some comics did mock the gold stripes on Rehnquist's robe (after they saw him preside over the Senate impeachment trial earlier this year), but I don't think many people viewed the whimsical stripes (adapted by the chief from a Gilbert and Sullivan opera) or his characteristically impatient manner during the Senate trial as definitive of the man, as chief justice.

    Arlington, Va.: As a photographer, I was particularly startled by the implications of the decision in the Alden v. Maine case, which gives the states immunity from prosecution for violation of federal laws such as copyright protection. What is likely to happen next in this area? Is Congress likely to address this with a constitutional amendment protecting individuals' rights, or are they too busy trying to protect the flag?

    Joan Biskupic: There is virtually no way that Congress can reverse the effects of the majority's view of state immunity from lawsuit. The majority, in an opinion by Justice Anthony Kennedy, said the Constitution's words, history and structure – the whole thing, in his mind – require broad state sovereignty. The only way to change rulings, such as the one from Maine, is to change the make-up of the court. David Souter, in his opinion for the dissent said he hoped the majority's stance would be "fleeting." That will only happen if one of those five justices in the majority retires and a more liberal jurist joins the bench.

    Norfolk, Va.: What do you see as the key cases before the court for the term beginning in October?

    Joan Biskupic: There are lots of good ones pending for the term that begins Oct. 4, among them a dispute testing the Food and Drug Administration's authority to regulate tobacco, an election campaign-finance case, a cable case, examining whether the federal government can block the Playboy Channel from showing its programs during the day-time....

    New York, N.Y.: I remember months and months ago hearing odd rumors about the possibility of Justice Scalia running for president in 2000. I know that was just a crazy lark, but do you think the justices enjoy their positions as they are, or do you sense there are budding politicians on the bench? Conversely, do you think there are any politicians out there – Mario Cuomo or Bruce Babbitt before his independent counsel problems – who would make good justices? Are the personalities for the jobs just too different?

    Joan Biskupic: Justice Scalia for president? That would be wild. I can't imagine how long he would last with the political press! I think the reality is that all nine of these men and women like being judges. They like the pace, they like being largely behind the scenes, they like resolving issues by looking at paper, records. Scalia is one of the few justices who shows a more political, argumentative, mix-it-up side. And on the second part of your question, I think there are plenty of politicians out there who would make good justices – as they have in the past; in earlier times, presidents often turned to Cabinet secretaries, governors and other political officials for the bench.

    Richmond, Va.: In what context will the next major abortion decision handed down by the court arise? Or do you think the court will stay away from that issue for a while?

    Joan Biskupic: For the near future, and probably well into the next decades, I think Roe v. Wade will be the law of the land. No majority of this court wants to change it... and among the men running for president, there are clear signals that they are not looking to appoint any justice who would change it.

    Norfolk, Va.: What is the latest word on possible openings on the court? Although it is probably too late now, why has Stevens insisted on waiting (seemingly) until after the next election to retire, especially given his propensity to side with the Clinton appointees on the Federalism issues? Several readers have been curious about possible retirements on the court, and have also wanted to know who you consider likely candidates to replace any justice who hangs up his or her robe.

    Joan Biskupic: I wish I had a crystal ball on this one. Let's just consider Al Gore and George W. Bush for the moment, although who knows what will happen between now and the election in 2000. Gore might be interested in picking up where Clinton left off and perhaps elevating one of Clinton's appointees to chief justice, should an opening arise. (There are many in the women's rights movement who would like to see Ruth Bader Ginsburg become the first woman chief justice.) But Gore might also turn to many of the prominent appeals court judges Clinton named, including Jose Cabranes, on the 2nd Circuit, who would be the first Hispanic justice if appointed. (I mention these "firsts" only because it obviously becomes important in politics.) I am not sure what Bush would do, although after eight years of a Democratic presidency, there are many conservative jurists who are champing at the bit for elevation, both to the Supreme Court and to the regional appeals courts. Thank you, Joan, and thank you to everyone who participated today. Join us every Friday at 10 a.m. EDT for Holding Court. Here are some Post stories on some of the topics mentioned today:

    In 3 Cases, High Court Shifts Power to States June 24, 1999
    Supreme Court Limits Meaning of Disability June 23, 1999
    Justices to Decide FDA's Role Over Tobacco April 27, 1999
    Supreme Court to Weigh Limits on Adult Cable June 22, 1999

    © Copyright 1999 The Washington Post Company

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