Supreme Court Watch
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GWEN IFILL: Grandparents’ visitation rights took center stage at the court today. In a 6-3 decision, the Justices struck down a Washington State law that gave family and non- family members court-protected access to children, even if their parents objected. For more on this and other action at the court today, we’re joined by NewsHour regular Jan Crawford Greenburg, national legal affairs correspondent for the Chicago Tribune.
Jan, we talked about this case before but remind us again about what brought us to this point. What was this case?
JAN CRAWFORD GREENBURG: It’s really just been terribly sad from the beginning. It came about in 1993 when Jennifer and Gary Troxel, the grandparents, went to court to get court-ordered visitation to see their two granddaughters.
Their son, Brad, had died earlier. He had never married the mother of the children, and she had wanted to limit their visitation and so they were worried that she was really going to limit it more. So they wanted a court to step in and guarantee them a certain amount of time with their granddaughters. They prevailed before a trial judge. He ordered a certain amount of visit: A weekend a month, a week in the summer, which was more than the mother had wanted to give.
So, she appealed that ruling. She appealed it to the appeals court and the state Supreme Court. She said that she had a fundamental right under the Constitution to raise her children as she saw fit, without the state interference in those matters.
And the state Supreme Court agreed. Now, the grandparents decided to take that ruling to the U.S. Supreme Court. They agreed or decided to do that back early last year. They’ve not seen their grandchildren since.
GWEN IFILL: The decision today was 6 to 3 but there were six separate concurring and dissenting opinions written, is that right? There were a lot of opinions written.
JAN CRAWFORD GREENBURG: It’s a little more technical and as Justice O’Connor said, and she wrote the leading opinion, there wasn’t even a majority opinion in this case. As she said when she started announcing it from the bench that unfortunately the members of the court were no better able to come to a resolution than the parties had been in this case.
So what that means is we’ve got this really highly emotional and very closely watched case that could affect a host of laws across the country. 50 states have similar laws. And the court was unable to agree on not only whether or not this law should be struck down on its face but how these rulings would affect a host of other laws across the country.
Really I think all we can say after today’s ruling is that in this case this law went too far, and certainly there’s a lot of language that suggests yes, parents have these fundamental rights to raise their children and pointing to the language and the 14th amendment which says that the state can’t deprive people of their life, liberty or property without due process of law, and that’s where that comes from because a fundamental right to raise one’s children is considered one of the oldest rights, liberty rights.
GWEN IFILL: But why is the Washington state law which you just said the court decided goes too far, why is that different from the laws in the other 49 states?
JAN CRAWFORD GREENBURG: As O’Connor said in her leading opinion which only three other Justices joined it was breathtakingly broad. It wasn’t limited to grandparents. At any time any person could haul a parent into court to get visitation and a court was authorized to grant that if the judge found that it was in the best interest of the child.
Now, in the leading opinion again only four Justices agreed with this. O’Connor suggests that other laws may be okay if they’re more narrowly written — for example, a state law that says a grandparent could go into court if the grandparent had been denied any access to the grandchildren and had had a role in their life somehow that it would harm the child, that those laws may still be okay.
So we can’t really say that this is the sweeping, you know, ruling, there’s not even really a majority ruling, or a strong affirmation of parents’ rights. Certainly it does affirm Tommie Granville’s parental rights in this case. But it’s very hard, I think, to say after today what broader impact the rulings will have.
GWEN IFILL: And it did not speak to at all the idea about whether a grandparent or some other person can try to gain visitation rights based on the best interest of the child. It didn’t speak to that at all.
JAN CRAWFORD GREENBURG: Not precisely, no. And Justice Stevens, one of the dissenters, put more emphasis on the best interest of the child. In her leading opinion– and I hate to keep saying leader; it was kind of the main one because it got four votes whereas the others got one– O’Connor said that this law was terribly overbroad and took in way too many counts and as applied it was unconstitutional because there was no evidence that Tommie Granville was an unfit mother, and furthermore that, you know, the court had really had this presumption all along. It had focused on the lower court I mean had focused more on the best interest of the child instead of whether or not the parent was fit and had the right to do what she wished with the children.
GWEN IFILL: A lot of people were watching this argument and this decision to see if maybe the court would speak on what a traditional family is. They didn’t do that at all, did they?
JAN CRAWFORD GREENBURG: And again, I mean, that’s right. That’s another reason why this case was so… It wasn’t just grandparents but it was all these kind of non-traditional families that we see more and more- of.
GWEN IFILL: Same-sex couples.
JAN CRAWFORD GREENBURG: Right. Certainly as O’Connor mentioned today four million grandparents raising grandchildren – and there is an acknowledgment in Justice O’Connor’s opinion about the changing role of the American family. One of the dissenters, Justice Kennedy, mentions that. But they didn’t deal with it. I mean, they didn’t say, yes, this is a changing role and here’s what we really believe.
GWEN IFILL: It’s so interesting that the court should take the unusual step of stepping into family law, something that’s usually left to state courts, and then deliver this kind of mixed message today.
JAN CRAWFORD GREENBURG: Well, Justice Scalia, one of the other dissenters, said that this is an issue of state law and who thinks that federal courts can decide these issues of family law – you should leave them to the state legislatures. And the mother of the people I talked to today expressed frustration with what we got from the court today because it is such an emotional and closely watched issue and one that people had really hoped the court would bring some clarity too but it was unable to do it.
GWEN IFILL: Six of the nine Justices, as we discussed last time, are grandparents even though that didn’t seem to enter into the debate or the opinions today.
JAN CRAWFORD GREENBURG: No.
GWEN IFILL: I was most interested in a separate concurrence by written by Justice Clarence Thomas because he, himself, was raised by grandparents and is rearing a great nephew. Was there anything interesting in his take on this?
JAN CRAWFORD GREENBURG: Two things. A broader point. A lot of people think of Clarence Thomas still as kind of a sidekick to Antonin Scalia. They’re the two most visible conservatives on the court. That’s really not fair. It’s been proven that Thomas certainly walks away from Scalia on a number of occasions. He has very strong views in a variety of areas that Scalia doesn’t share. Today’s case is a perfect example because he sided with the parents.
Scalia went the other way. But his opinion itself has no personal tone. That would be pretty unusual for a Justice to do that. He just wrote separately to emphasize that if we were going to view this as a fundamental parental right to make these decisions, that courts and federal courts, should step in and very strictly analyze whether or not these laws go too far.
GWEN IFILL: One other case in the court today, the court decided to come down on the side of an old friend of Bill Clinton’s, Webster Hubbell.
JAN CRAWFORD GREENBURG: Right. The former attorney general had an important case about whether or not he could be prosecuted for turning over some documents to Independent Counsel Kenneth Starr. He had argued that he should have been immune from prosecution, and Starr instead tried to charge him with tax charges.
GWEN IFILL: He was an assistant attorney general, not attorney general.
JAN CRAWFORD GREENBURG: Excuse me. Right. Definitely. Sorry. But at any rate, Starr had sought out these documents because he was trying to prove that there was some kind of hush money that was paid in connection with Whitewater, so Hubbell got this I immunity grant. He turned over like 13,000 pages of documents. Starr took these documents, reviewed them note really seeing the hush money issue, noticed that, hey, I can charge Web Hubbell with tax fraud, which he did. Hubbell said that’s not really fair.
The fifth Amendment after all protects people from being compelled to be a witness against themselves, and so because he had gotten his immunity grant, he shouldn’t be prosecuted for these tax fraud charges. And the Supreme Court today agreed and they dismissed the indictment. He was never convicted it was just a charge. They dismissed the charges.
GWEN IFILL: This is not related in any other way to the things for which he was indicted and sentenced?
JAN CRAWFORD GREENBURG: Right.
GWEN IFILL: Other cases?
JAN CRAWFORD GREENBURG: Right, exactly.
GWEN IFILL: Jan Crawford Greenburg, thanks a lot.
JAN CRAWFORD GREENBURG: Thank you.