Supreme Court Roundup
Charles Lane
Washington Post Staff Writer
Thursday, July 01, 2004; 11:00 a.m. ET
The Supreme Court wraps up the 2003-04 term this week after ruling on questions ranging from the Pledge of Allegiance and Internet porn to anti-terrorism powers and campaign finance law.
Washington Post staff writer Charles Lane discussed the end of the Supreme Court term.
The transcript follows.
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over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
New York, N.Y.:
With no retirements annouced, if President Bush is not re-elected in November, it seems to me he'd be the first President in decades not to have at least one Supreme Court pick. Am I correct?
Charles Lane: You are basically correct. The last president to have no appointments to the court was Jimmy Carter (1977-1981).
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Portland, Ore.:
It seems like the Supreme Court decided a lot of its cases on procedural bases and avoided weighing in on a lot of gnarly constitutional issues. Even so, it seems like the Court had time to diminsh Miranda rights without anyone noticing: am I right?
Charles Lane: You have a good point. I noticed that, too. In the Pledge of Allegiance case, it did not decide whether "under God" is constitutional or not, simply that the atheist who objected to it lacked standing to bring the case. In the case of Dick Cheney's energy task force, it didn't decide whether he would have to surrender the group's documents or not, simply that a lower court should reconsider the matter. In a more technical but perhaps more important case, U.S. v. Alvarez-Machain, the court seemed to waffle between letting victims of foreign human rights violations sue in and urging district courts to rein in such suits. Even in the terrorism cases, where the court made the big decision to give federal courts supervisory authority over the executive branch, it left open tons of important questions about how that should work.
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Boston, Mass.:
I've always thought one of the biggest advantages of being President was the ability to appoint Supreme Court Justices. Yet, except for people who closely follow politics, the average voter does not seem to see the connection. Given that there are bound to be retirements in the next four years and with the court so evenly divided, you'd think we'd hear more about this issue. Do you agree?
Charles Lane: I think the average voter does not decide based on court appointments, but that this is a topic that definitely motivates the ideological base of each party. So I think we will hear a lot about it as the campaign evolves -- yet it won't decide the election, or event close. The big stuff -- Iraq, the economy -- is what really counts.
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Syracuse, N.Y.:
Has the "new" federalism reached its limits? Are there cases on for the next term that will give the Court an opportunity to speak on these issues?
Charles Lane: I don't recall off hand that the court has granted any such cases for next term. But I agree that the "new federalism" may have topped out. The court upheld a right of the disabled to sue states for denying them public accomodations under Title II of the Americans with Disabilities Act -- a serious blow to state sovereign immunity in one of the key areas that had previously been unresolved. Also, in the previous term, the court had already made it pretty clear that the states can protect women from job discrimination. So I think that movement has reached its high water mark.
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Virginia
What do you think were the most important decisions to come out of the Court this term?
Charles Lane: Well, obviously the court's rulings permitting court hearings for the detainees at Guantanamo, and for the U.S. citizens held as enemy combatants were the most important cases. But Blakely v. Washington turned out to be a real sleeper, in that the court probably has invalidated all state sentencing guidelines, and will eventually do the same for the federal guidelines. We have already seen the results, with Tractor Man getting released earlier than he would have otherwise.
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Anonymous:
The Miranda decision was overshadowed by other rulings of the day. Can you explain exactly what was decided by the justices?
Charles Lane: There were two Miranda cases, both asking the court to define the scope of a right it had reaffirmed in general terms back in 2000. In the first case, Missouri v. Seibert, the court ruled that police may not deliberately avoid giving suspects their Miranda warnings, interrogate them, and then use the results of that interrogation to guide a subsequent "warned" interrogation. In the second case, the court went the other way, arguing that prosecutors can use physical evidence gathered as a result of a suspect's unwarned statement.
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Arlington, Va.:
Now that the term is over, what do the justices do? Are they effectively on vacation for months?
Charles Lane: They travel, lecture, putter around the house, recharge their batteries, that sort of thing. Justice Kennedy likes to go to Austria, where he teaches a constitutional law class at Salzburg. Justice Souter knocks around his family homestead in rural New Hampshire. Justice Thomas piles the family in a 40-foot bus, equipped with a bathroom and beds, and travels the highways and byways. And from time to time, they deal with applications for stays of execution by fax!
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Washington, D.C.:
No retirements have been announced as the court closed its term, does that mean none will occur this year?
Charles Lane: Probably. But you never know. Some of the justices are quite elderly, and in such cases sudden illness or injury can always occur. Justice Brennan finished up the 1989-1990 term at the court, with no apparent intention to retire, then suffered a stroke while on vacation. At that point he decided to retire.
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Demarest, N.J.:
Two questions, one entirely serious and the other for the most part provocative:
(1) In the enemy combatant and Guantanamo cases, did the Court provide enough concrete guidance about what the government must do now? Or did it leave open the possibility that the Administration can drag its feet, follow the letter but not the spirit of the decision, and so on? In other words, may it be a victory for Constitutional rights in theory but not in practice? (I notice John Ashcroft is already harrumphing about the difficulty of developing new procedures....)
(2) Now that we have a bit of distance from it, is there a way of interpreting the Pledge decision as anything but the avoidance of a political firestorm? The idea that "under God" belongs in the pledge certainly has political legs, but does it have Constitutional legs in a document that insists -- quite plainly -- that Congress shall make no law establishing religion? Aren't all the arguments about "ceremonial Deism" and "historical description" and such, like the argument about Michael Newdow's standing, intellectually dishonest fudge factors designed to permit something the Constitution forbids but a large majority of public embraces?
Charles Lane: I basically share the premises of both your questions. In the pledge case, the court punted, perhaps in the hope that the matter will go away until a day when public opinion is readier to accept getting rid of "under God," or perhaps because they wanted to keep "under God," but couldn't think of a plausible rationale. Or, perhaps, to prevent the election from turning into a referendum on the activist justices of the Supreme Court! As for Guantanamo and the Hamdi case, the court not only gave only sketchy guidance, it gave it in an opinion that was joined fully by only four justices. Lots of time-consuming litigation lies ahead.
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Alexandria, Va.:
Thank you for taking our questions.
In general I find that the importance of the Supreme Court is underplayed in the media and by society in general. That a handful of men and women with lifetime appointments can rule on the most pressing matters of the day and alter history in such a profound fashion I find extraordinary. Why do you think the day to day life of the Court is not as well documented or followed as say the House or Senate, let alone the White House? There are governors who get more press than the Court.
Follow up: Where should one look who is interested in keeping up with the Court year round? Are there online journals or newspapers that you would reccomend?
Charles Lane: Quite simply, the day to day life of the court takes place almost entirely in secret, in the justices' chambers where everyone is bound by a kind of judicial vow of silence. I'm not sure how illuminating a wide-open opinion-writing process would be, however, since the written opinions are pretty much a "what you see is what you get" proposition. In short, there might be less there than meets the eye. Good places to follow the court? Well, there's always the Washington Post, but, to answer another question as well, some good blogs are at goldsteinhowe.com and "how appealing," Howard Bashman's appellate court blog.
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Washington, D.C.:
An earlier questioner seemed critical of the Court for failing to reach the merits and deciding cases on "procedural" grounds.
I find that jurisdiction and standing are not "procedural" sidestepping, but instead go to the heart of some of the issues. Padilla SHOULD have been remanded -- the forum shopping to escape the 4th Circuit [if it was forum shopping] violated fundamental rules of habeas -- go after the Warden!
But Newdow was an embarrassment -- "prudential" standing, when you acknowledge Article 3 standing, is an embarrassing refusal to take on a real issue.
Charles Lane: Thanks for your comment. Though to the extent you say Padilla was forum shopping by filing in New York, it should be remembered that the government chose that forum initially by bringing him there from Chicago.
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Washington, D.C.:
Some court observers have begun to distinguish the justices as legalists (Scalia, Stevens) and pragmastists (Breyer, O'Connor, Rehnquist) rather than liberals and convservatives. What do you think of this paradigm for understanding the Court's decisions?
Charles Lane: There's something to it. Certain the lineup in the Hamdi case, in which Scalia and Stevens jointly dissented, while the other three you mentioned were with the plurality, would support that view.
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Washington, D.C.:
I have always read that the justices are pretty anti-media – not granting interviews, being stingy when it comes to audio/video documents of oral arguments, etc. Would you agree? Are you able to interview justices at all?
And on a separate note: Is it true there is a basketball court at the top of the Supreme Court building?
Charles Lane: It's true, the justices are pretty media shy, though if you're in the press corps and hang around the court, you can talk to them superficially from time to time. And yes there is a basketball court on the top floor, known fondly as "the highest court in the land."
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Washington, D.C.:
I heard Justice Scalia is an avid golfer. Do you know his handicap?
Charles Lane: I don't think he's that big on golf. More tennis and hunting. The big golfers on the court are O'Connor and Stevens.
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Baltimore, Md.:
I’m really new to Supreme Court proceedings. I am a student who is very interested in economics and policy.
Do you think that Supreme Court decisions are largely based on their political affiliation, a factor other than legality?
Charles Lane: Well, that is the age-old question of the court. Most people approach it by asking whether the reasons a justice gives for his or her particular vote in a case can be supported by principled legal analysis. Yet that question itself usually admits only of subjective answers. Where you stand on it depends on where you sit. I think the justices are by and large people who regard themselves as quite objective and principled -- and that their objective principles may tend to lead them in a particular direction that matches up with the ideology of one or the other party. But let's face it: you don't get nominated and confirmed by a political process without being a little political yourself.
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Washington, D.C.:
One of your questioners spurred me to respond -- many of the decisions by "a handful of men and women" don't actually make law or even decide constitutionality -- they opine on what Congress has done. Many of the ADA decisions have been required of the Court because litigants want the courts to declare remedies where Congress did not provide them. Lots and Lots of Decisions really just send the matter back where it belongs - to the legislature. But legislators don't want to make the hard decisions in drafting the legislation, or can only pass half a loaf and then pray that the courts will tack on the other half later.
When the Court sends something back to the legislature, they're doing what the Constitution requires, and what democracy should seek.
Charles Lane: Thanks for your comment.
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Baltimore, Md.:
The 5-4 vote on regulating sexually explicit materials on the Internet seemed strange to me. Clarence Thomas voted in the majority to reject COPA, while Stephen Breyer wrote the main dissenting opinion. Could you comment on this?
Charles Lane: Nothing strange about that. The First Amendment is one of those issues that cuts across usual left-right lines.
Thanks for your great questions. That's all I have time for today!
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