Supreme Court Watch
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GWEN IFILL: Newshour regular Jan Crawford Greenburg, national legal affairs correspondent for the “Chicago Tribune,” was at the court for both arguments this morning, and is here with us now. Jan, both sides seem to agree at least that this… to this much, and that’s that cigarettes are unsafe. But that’s not really at the root of this argue. Is it?
JAN CRAWFORD GREENBURG: Well, no. I mean this case really began in 1996 when President Clinton announced that the FDA, The Food and Drug Administration, for the first time ever was going to regulate tobacco products as drugs and drug-delivery devices. President Clinton said at the time that the regulation was important as part of this effort to curtail underaged smoking. So as parted of that, the agency issued a series of regulations that limited the sale and marketing of cigarettes, limits on vending machines, limits on advertising to curtail this underaged smoking. The industry, retailers, advertisers, immediately filed suit to block this newly asserted regulatory role. They prevailed in a federal appeals court, which said basically that the FDA had no authority to regulate cigarettes, that Congress never intended for the FDA to have that authority. The agency took that dispute to the Supreme Court, and that’s what we got into today.
GWEN IFILL: You were in the courtroom today. What were the arguments like?
JAN CRAWFORD GREENBURG: Well, this really I think was the court at its finest hour. It was just a terrific argument. The Justices, though testy and tense at times, were thoroughly engaged throughout. The advocates on both sides, Seth Waxman for the Clinton administration, Richard Cooper, a prominent Washington lawyer for the industry, very, very distinguished and quite ably presented their respective positions. So it was just a terrific argument with quite a lot at stake.
GWEN IFILL: There seems to be… that’s my very next question: What is at stake? You have Congress, which has something at stake here, the tobacco industry, which has something at stake and the FDA, as well.
JAN CRAWFORD GREENBURG: Well, that’s right. And in the short term, of course, what’s at stake is whether or not these regulations will go into place or at least some of them. Some also are under attack by the advertising restrictions. But in the long term, the industry argues that nothing less in a way than its future is at stake because they maintain that there’s no way that you can say cigarettes are safe and effective, as you mentioned earlier, so therefore, if the FDA is going to regulate them as a drug, it would have no choice but to ban them.
GWEN IFILL: Isn’t that a reasonable argument?
JAN CRAWFORD GREENBURG: Well, some have made that argument, and the appeals court below found that to be a reason why the FDA lacked this jurisdictional authority. They said, “look, Congress surely never intend tended that result. Congress never would have wanted the FDA to ban cigarettes.”
GWEN IFILL: For years, the FDA has said they didn’t have the power to regulate tobacco or the tobacco industry for various reasons. What’s different now?
JAN CRAWFORD GREENBURG: The FDA says that newly discovered evidence shows that the tobacco industry knew about the intended effects of nicotine, and because of that, because there’s this intent, that it brings it within the definition of the law and that it allows it to regulate these products as drugs and drug devices.
GWEN IFILL: So say the court decides that tobacco is a drug and that a cigarette is a drug-delivery system. Is there any choice it has but to give the FDA power to regulate it?
JAN CRAWFORD GREENBURG: Not… I guess not in the short term, and there still will be things hashed out in the lower courts on, for example, the advertising restrictions, which a district judge found to be unconstitutional. But several of the Justices were very skeptical today about this newly asserted regulatory role that the FDA maintains that it now has.
GWEN IFILL: Now, I know it’s hard to predict what the Justices will do, and I would never put you in that position. However, here’s an interesting cue perhaps. Do any of the Justices smoke?
JAN CRAWFORD GREENBURG: Yes, actually Justices Antonin Scalia and the chief justice, Chief Justice Rehnquist both smoke. And in fact they also scoffed today when Seth Waxman made the point that the FDA was stepping in now because the industry, for so long, has denied that nicotine is a harm… Or is an addictive substance. And Scalia and Rehnquist both said, “well, no one believed that when they said that it wasn’t addictive.” But other Justices today seemed very skeptical, as well. Justice O’Connor, for example, said that regulation of cigarettes just doesn’t fit under federal law, and she said, “I think the conclusion is, under the statute, if they are covered, tobacco, tobacco has to be banned.”
GWEN IFILL: There was another case, important case argued today at the court. This was about the separation of church and state, an issue, especially having to do with schools, that the court has tiptoed around a lot. What was different about this case today?
JAN CRAWFORD GREENBURG: Well, in some ways they recognize that they had tiptoed around some of these issues in and that some of their earlier cases have created this very confused state of the law about what kind of aid to schools is appropriate and what is not. Several of the Justices today seemed eager to clarify when federal aid and taxpayer money is appropriate for religious schools, but as other Justices said, Justice Stevens, for example, said that’s just a really difficult line to draw.
GWEN IFILL: What is this particular case about?
JAN CRAWFORD GREENBURG: This case involves a federal program that provides instructional materials to public and parochial schools, materials like computers, library books, software. A group of parents in Louisiana challenged that, saying that violates the First Amendment — the federal aid, you know, going to these religious schools, too establishes a religion and that that’s just improper. A federal appeals court agreed, and that’s how this case has now reached the Supreme Court.
GWEN IFILL: So presumably, these are parents whose own children are in public schools and think that their money should not be going to…
JAN CRAWFORD GREENBURG: Right.
GWEN IFILL: How do you make the distinction between, say, federal money spent for computer and federal money spent to send kids to school on a bus?
JAN CRAWFORD GREENBURG: Well, the court grappled with many of those said. They said, “you know, could you… what about a lectern? Could the government pay for a lectern that a teacher would use to teach are or software? Could they build a school, a religious school if they also were building public schools?” In the past, they’ve said that textbooks were okay for religious schools, implying that the textbook was all right because it couldn’t be used for a religious purpose. I mean it was there, what was in the textbook, so they couldn’t take it and turn it around and use it to do something different.
GWEN IFILL: Unless the textbook was about creationism.
JAN CRAWFORD GREENBURG: Well, that point was made in court today, too.
GWEN IFILL: So what can we glean from the questioning in court, once again, on this case about where the Justices are coming down?
JAN CRAWFORD GREENBURG: Well, this is… I think this was with a much more difficult argument in many ways. And while the first argument was fast and furious and you know, 85 miles an hour, this one slowed down to about 50. And some of the very influential Justices, Justices that we think of as swing votes on these very difficult issues of religion, Justice O’Connor and Justice Kennedy, were pretty quiet during this argument. I think that the main thing we can take from today’s case is that the Justices themselves are somewhat, I guess you could say frustrated with some of their earlier decisions and would like to clear up these issues, particularly, though it wasn’t mentioned specifically today, but particularly as other issues are on the horizon, such as school vouchers.
GWEN IFILL: We know what the stakes were in the tobacco case, who the winners and losers are. What stands to be lost or gained in the ruling on this case?
JAN CRAWFORD GREENBURG: Well, the federal government wants to try and have every American classroom connected to the Internet. That’s a very… right there, that’s an immediate impact that the ruling could have in this case. But as I mentioned, vouchers also, people are very closely monitoring this case because of the implications that it could have for these vouchers, tuition programs, letting parents take, you know, taxpayer money and giving those to religious schools for their children.
GWEN IFILL: And for the future of public schools, as well.
JAN CRAWFORD GREENBURG: Exactly.
GWEN IFILL: Jan Crawford Greenberg, thank you very much.