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Blockbusters: New Supreme Court Session

October 7, 1996 at 12:00 AM EDT
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CHARLAYNE HUNTER-GAULT: It’s the first Monday in October, and that means the beginning of a new term for the U.S. Supreme Court. On the docket are a wide spectrum of cases ranging from physician-assisted suicide to sexual harassment. We get a preview now of the term ahead from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Stuart, it’s nice to see you again after a summer’s respite. How would you characterize the court docket for the coming term?

STUART TAYLOR, The American Lawyer: It’s a very full docket with a great range of very important cases, but I think the ones that tower above the others, the ones that will maybe ten years from now really look like seminal cases are the two physician-assisted suicide cases from the states of Washington and New York in which lower courts struck down laws that bar doctors from helping patients hasten death when the patients are suffering.

CHARLAYNE HUNTER-GAULT: Mm-hmm. And so what are they considering here?

MR. TAYLOR: Uh, the issue for the Supreme Court is whether there’s a constitutional right for a patient who is terminally ill, who is competent, and who wants to hasten death because the patient’s in pain or otherwise suffering, for that patient to ask his doctor to give him or her a lethal injection, for example, and for the doctor to go ahead and do it, because the problem, as perceived by those who support this, is that it’s illegal almost everywhere for doctors to do that, and has been since time immemorial. The Hippocratic Oath bars it.

CHARLAYNE HUNTER-GAULT: And the constitutional principle that’s being–that is at issue here–

MR. TAYLOR: The lower courts use two constitutional principles. They’re both vague majestic phrases from the 14th Amendment. One of them is due process of law. The state shall not deprive anyone of liberty without due process of law. The other one is the state shall not deprive anyone of equal protection under the laws. And one court, the one that struck down the Washington statute, used due process and basically said the same logic of personal freedom and autonomy unregulated by the state that supports the abortion right, Roe Vs. Wade, also the court said supports a right to physician-assisted suicide. It was a very broad activist decision.

A court in New York used a slightly superficially narrower rationale. It said, um, since there’s already a right under New York law and under the Constitution to decline medical treatment, to say pull the plug, take me off that respirator, uh, this court said we see no difference between pulling the plug, which can lead someone to die of asphyxiation or starvation, and a lethal injection. Now when the court said that it was going against generations, thousands of years really of medical and moral principle held by a lot of other people.

CHARLAYNE HUNTER-GAULT: All right. So that’s a big–what one newspaper termed today a blockbuster.

MR. TAYLOR: Those are blockbusters.

CHARLAYNE HUNTER-GAULT: All right. You mentioned abortion in that context. What about the abortion clinic protests? That’s another one.

MR. TAYLOR: That is a very important case. It’s really more of a free–1st Amendment free speech, freedom to picket case than it is an abortion case I think is the way the court will litigate it. A lower court–because there are protesters at clinics who, who harass often women coming and going from abortion clinics and sometimes deter or intimidate them from doing it, the lower court passed an injunction and created what’s called a 15-foot floating buffer zone, which basically tells the protesters you can’t come within 15 feet of any woman who doesn’t want to talk to you or of the clinic, itself. The lower court held that that was constitutional. The issue for the Supreme Court is whether it violates the 1st Amendment free speech protest rights of the anti-abortion demonstrators.

CHARLAYNE HUNTER-GAULT: All right. Now, there’s another one, the Brady gun law case. What is the issue there? What is the case, briefly?

MR. TAYLOR: The Brady gun law in 1994 established a five-day waiting period for handgun purchases during which local law enforcement officials are supposed to do background checks to make sure that the person buying the gun is entitled to it, that isn’t a felon or a lunatic or an illegal alien or something like that. But some of the local law enforcement officials, including sheriffs in these cases in Montana and Arizona, said I don’t work for the federal government, you can’t make me go enforce this federal law, that violates state’s rights under the 10th Amendment to the U.S. Constitution, which provides that only specifically delegated rights are held by the federal government and all others are held by the states.

Now, this court, the Rehnquist court, one of their major thrusts in recent years, has been to rearrange the division of power between the federal government and the states and to give the states more protection from federal intrusion than in the past. And so this may be the continuation of that trend. It would not–it would not knock down the whole gun control law even if the sheriffs won, but it would knock out the enforcement mechanism.

CHARLAYNE HUNTER-GAULT: Mm-hmm. And that fits in with the evolution of states’ rights versus federal authority that’s–that’s happening.

MR. TAYLOR: In the last two years, they’ve revisited decades of old doctrines and showed that they’re going to move the law towards the states.

CHARLAYNE HUNTER-GAULT: All right. Then there’s the presidential immunity case. Briefly tell us what that’s about.

MR. TAYLOR: Paula Corbin Jones, it is widely known, sued President Clinton for sexual harassment in 1994. His–he denied it in a general way but his defense is that nobody can sue him for anything in a civil damage suit while he’s President because he’s too busy and his time and attention are a precious national resource that shouldn’t be squandered defending civil damage suits. It’s a defense of presidential immunity. Both lower courts rejected this defense while the President was appealing and one of them said the Constitution did not establish a monarchy; they rejected it rather resoundingly.

The President appealed that decision to the U.S. Supreme Court, and is now arguing in the court that except in very exceptional cases perhaps, nobody should be able to sue him until he leaves office, including Paula Corbin Jones, and that all proceedings in her case have to stop cold, not just a trial but for example, she has been prevented so far by interim lawyers even from taking evidence from other witnesses unrelated to the President, himself.

CHARLAYNE HUNTER-GAULT: Mm-hmm. Now the lead-off case today involved Ted Turner Vs. The FCC. Now that one could get a little complicated so in the usual Stuart terms help us understand that one.

MR. TAYLOR: Let me get my scorecard. The cable–there’s a longstanding rule, which Congress readopted a couple of years ago called the must-carry rule. It requires cable television operators to carry all local broadcast signals and to retransmit them as part of the cable. The idea is people in homes that have cable aren’t going to listen to the–aren’t going to watch over their television; they’re only going to watch cable television, and if there’s some small broadcaster that isn’t carried on cable, they will shrivel and/or die, so the small broadcasters want to be carried on cable and they don’t want to have to pay for it. Congress, to protect that portion of the industry, has requires cable television systems to carry their signals.

The issue in the Supreme Court is whether that violates the 1st Amendment rights of the cable systems, their editorial freedom. The logic is you couldn’t tell a newspaper, you have to carry articles it doesn’t want to print, and you can’t tell us we have to carry programming we don’t want to print. It mixes economic regulation with free speech principles because the argument from the local broadcasters is these people have market power. They’re almost like monopolies and they can squash us unless the government protects us from them. The government–the Supreme Court today in the oral argument seemed rather skeptical of that argument, and the solicitor–acting solicitor—Walter Dellinger, who is trying to get this upheld, it looked like he had an uphill battle.

CHARLAYNE HUNTER-GAULT: All right. Now we’ve just touched on some of the highlights of the, of the cases that are, as we said, likely to be blockbusters. There are some 59 cases that the justices are going to hear this term, right?

MR. TAYLOR: Well, they have taken 59 so far. They will take more in the coming weeks, and they’ll probably end up hearing eighty or ninety.

CHARLAYNE HUNTER-GAULT: Stuart, two years ago this court was poised to become a conservative activist court. What kind of court is going to hear these cases now?

MR. TAYLOR: In my opinion, which is maybe a little unorthodox, it’s a very centrist court and has been for years, including a couple of years ago when a peculiar mix of cases that it had in one year and the kinds of headlines they made let everybody saying that conservatives are taking over, but if you look at the composition of the court, it has not changed. It’s moved a little bit more to the liberal side, if anything, in recent years because of President Clinton–Byron White–

CHARLAYNE HUNTER-GAULT: And you’ve got two swing voters.

MR. TAYLOR: You have two swing voters, Anthony Kennedy and Sandra Day O’Connor who are very moderate in their instincts, and nobody on the court has budged one inch, in my opinion, from where they were five years ago, none of those who are on the court. It’s not as though people have changed their mind and Sandra Day O’Connor or Justice Kennedy are getting more conservative. They are middle of the road, fence sitting, split the difference justices.

CHARLAYNE HUNTER-GAULT: All right. Well, it’ll be interesting to see how they rule on these cases. Thank you, Stuart.

MR. TAYLOR: Thank you.