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Supreme Court Watch

June 28, 2001 at 12:00 AM EDT


GWEN IFILL: The Supreme Court wrapped up its term today, deciding closely watched cases on tobacco advertising, immigration law and property rights. Here to walk us through today’s decisions is Marcia Coyle, Supreme Court correspondent and Washington bureau chief for the “National Law Journal.” NewsHour regular Jan Crawford Greenburg is on maternity leave. Marcia, let’s start with the tobacco case. What did the court rule? This was about advertising.

MARCIA COYLE: Right. Massachusetts was trying to cut down on smoking by minors, and so it imposed a set of restrictions on tobacco advertising near schools and playgrounds. The tobacco companies and some tobacco retailers sued the state claiming that the regulations either violated the First Amendments, free speech protections or were precluded, blocked, preempted by federal law. The Court, in a 5-4 opinion today, an opinion written by Justice Sandra Day O’Connor, pretty much struck down the bulk of Massachusetts’ regulations. It did it on two grounds: One, it said cigarette advertising restrictions that the state had imposed were blocked by a federal law that had said that no state could impose restrictions based on smoking and health beyond what the federal government has done; and it also found that the regulations swept too broadly under the First Amendment, essentially the restrictions could have eliminated tobacco advertising in about 90% of Massachusetts metropolitan areas.

GWEN IFILL: So did the court rule that the state was basically overreaching and, in the process violating not only federal law, but constitutional protections?

MARCIA COYLE: Exactly. But the court did uphold some of Massachusetts’s restrictions. What the court called sales restrictions on sales practices. Stores, for example, are required to keep tobacco products behind the counters. And the restrictions also required that a person buying tobacco products had to have contact with the salesperson. This was all designed to keep tobacco out of the hands of children. And the Court found that those restrictions were okay, they did not involve protected speech under the First Amendment.

GWEN IFILL: But these were not unanimous decisions, as usual?

MARCIA COYLE: No, they weren’t. It was a very splintered decision. The dissent, which was the main dissent was by Justice John Paul Stevens, and he disagreed that federal law blocked the state restriction. He felt that what Massachusetts was doing essentially was zoning where the advertising could be; it wasn’t concerned with the actual speech. It was just concerned about the placement. And there was nothing in federal law that would block a state’s traditional power to zone.

GWEN IFILL: Another case, which was kind of like the other shoe dropping from the twin — duel case earlier this week on immigrants in this country, saying immigrants who don’t have a country to go who are convicted of a crime can’t be held forever endlessly in the United States penal system?

MARCIA COYLE: That’s right, Gwen. This was a big week for immigration law. The case today involved a class of resident aliens who had been here, some of them, for many years. They ran afoul of criminal laws, were convicted, served their sentences, but under federal immigration law, they were ordered deported. In the period between their order of deportation and their actual removal from the country, they were held in detention. The government ran into a problem with sop of these people. The countries that they came from would not take them back.

GWEN IFILL: Like Cuba?

MARCIA COYLE: Cuba, Cambodia, Lithuania. So the government continued to hold them as it tried to work out arrangements. In one case, an alien was being held in detention for more than four years.

GWEN IFILL: Now, the case earlier this week, what was the connection, or was there?

MARCIA COYLE: It was similarly– similarly, it involved resident aliens who had been convicted of crimes and were ordered deported, and they wanted to challenge their deportation, the legality of what the government was doing. And the question was: Could they go into federal court to do that? The government claimed that Congress had eliminated federal review of those cases, but the court said, the federal courts continue to have a role, just as in the case today, the court said that federal courts should review whether the detention is reasonable. It said that, if you keep an alien in detention for six months, that alien can go into federal court and prove or allege that there’s no significant likelihood of being removed from the country within a reasonable period in the future. The government then can come back in, rebut that claim.

GWEN IFILL: Is there a distinction between protections in one case for legal immigrants and protections in another case for illegal immigrants?

MARCIA COYLE: Well, I think what the Court was saying is that, if you are in this country and you are here are you not stripped of the Constitution’s rights — but if you are at the door and trying to come in, you do not have those rights. There’s a question as to whether for example, the Mariel Cubans who arrived at our shores by boat, and many of them are still being held in detention, would be able to take advantage of this law– of this ruling. But right now, we know that at least I think around 4,000 permanent resident aliens are in this situation that the two who came before the Supreme Court are and would be affected by this decision.

GWEN IFILL: And in this case today, what was the argument against the decision?

MARCIA COYLE: The government had argued that the government had the discretion to keep them indefinitely in order to prevent them from returning to the community and harming somebody or risk of flight. The dissenters agreed with the government but also said that really the courts have no role here, that this is a matter of executive power, it’s also a matter of foreign policy, and the courts should have not injected themselves into these kind of determinations.

GWEN IFILL: Another case today on property rights, including beach front property or waterfront property in Rhode Island.

MARCIA COYLE: Yes. This is a very interesting case. Anthony Palizallo owns waterfront property in Rhode Island. He’s had it for a number of years, and when he got title to the property, the state had already restricted how it could be developed because the property included environmentally sensitive wetlands.

GWEN IFILL: Just part of the property, right that was submerged?

MARCIA COYLE: Just part of it. That’s right, just part of the property. He tried over a period of more than a decade to have the state approve his applications to develop part of the property. The state refused. He finally sued the state, and he sued under the Fifth Amendment of our Constitution, which says that government can’t take property for public use without compensating you.

GWEN IFILL: Now, the courted decision, it seemed like he kind of won on some points and lost on others.

MARCIA COYLE: Right. The issue before the Court was: Well, if you own property or you get title to the property and you know that it’s restricted in its development, can you turn around and say that the government took it from you without compensation? The Court said, yes, you can. It said the fact that property changes hands over a period of time or changes title, that alone doesn’t absolutely bar you from stating a takings claim because, if it did, a state would be absolved of the responsibility of proving whether the restriction on your property was reasonable.

GWEN IFILL: Now, this issue of takings is a big issue in conservative and libertarian circles.

MARCIA COYLE: That’s right.

GWEN IFILL: Does this decision today have an effect, outside of Rhode Island, in other cases or in other states?

MARCIA COYLE: Absolutely. I mean there is so much zoning regulation going on in this country, and there is continuing concern about development of environmentally sensitive lands. And this was a big question for the property rights movement, if the fact that you take title to the property, either by inheritance or buying it and it is restricted, can you still assert that the restriction is unreasonable?

GWEN IFILL: And was there a dissent in this case?

MARCIA COYLE: Yes, there was a dissent in this one.

GWEN IFILL: There is always a dissent.

MARCIA COYLE: Again, the Court divided very closely. It was 5-4. The dissent felt that this was… that once you have notice that the property is restricted, there can’t be a taking by the government, that the taking, or the restriction has occurred earlier in time, and that’s when you challenge it, when it has actually happened. You don’t challenge it years later when you know that it exists.

GWEN IFILL: Today, the last day of this session, this is the kind of day we usually expect to hear anything if there are going to be retirements. Any news today on that front?

MARCIA COYLE: No, there was no news. I was thinking back over time as to how Justices have announced their retirements. Some of them have done it on the final day. Some of them have given early notice to the White House. Some have come later, after the term ended. So I can’t say that it won’t happen this summer, but I think the anticipated retirements, or the rumored retirements of Justice O’Connor and the Chief Justice, did not happen today.

GWEN IFILL: Were you on the edges of your seat over there at the Supreme Court press room?

MARCIA COYLE: We all were because we knew if there was were a retirement, the work that the court did today on decisions would be overshadowed by that very political story.

GWEN IFILL: A little bit of anti-climax.

MARCIA COYLE: It sure would have.

GWEN IFILL: Marcia Coyle, thank you very much for joining us.