JUDGING THE JUDGES June 29, 1998 The NewsHour with Jim Lehrer Transcript

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In this term, the Supreme Court worked towards a legal definition of sexual harassment and ruled the Line-Item Veto unconstitutional. What do the latest decisions reveal about the political and legal direction of the Court? Four law professors give their interpretations.

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A RealAudio version of this segment is available. NEWSHOUR LINKS: ONLINE FORUM: June 23, 1998 Former Supreme Court clerk Edward Lazarus gives a first-hand view of the high court's inner workings. June 26, 1998 The Supreme Court rules on two cases involving sexual harassment. June 25, 1998 The Supreme Court rules on four major cases. June 22, 1998 The Supreme Court strikes down a sexual harassment lawsuit against a Texas school district. April 27, 1998 The Supreme Court hears arguments about the line item veto. March 31, 1998 Do decency standards for publicly funded arts violate constitutional rights? March 25, 1998 The Supreme Court hears two cases involving sexual harassment. Browse the NewsHour's coverage of law. OUTSIDE LINKS: Major Supreme Court decisions.

PHIL PONCE: This term the Supreme Court took up four sexual harassment cases--the most ever argued before the justices.

Defining sexual harassment.

In one case, the court ruled that an employee--in this case a Chicago woman--can sue for sexual harassment even if it caused her no apparent professional harm.

Another held that a Florida lifeguard can sue her employer even if the employer didn't know sexual harassment was taking place. But in another case, brought under a different law, the court found that a Texas school district was not liable for damages when a student was sexually harassed by a teacher, unless the district actually knew about it.

And in a Louisiana case involving this man who worked on an oil rig, the justices said that a federal law banning on-the-job sexual harassment applied even when the harasser and victim were the same sex.

Line-item veto, NEA and other decisions.

In another action, the justices ruled that the line item veto was unconstitutional. That 1996 law gave the president authority to cut specific spending proposals from a bill without having to reject the entire bill.

In a case involving federal arts funding, the court ruled that the National Endowment for the Arts can consider decency standards when deciding which artists get federal funds.

In a case prompted by the 1993 suicide of former presidential aide Vincent Foster, the court held that the attorney-client privilege continues even after a client dies.

And the court ruled that people who have the AIDS virus--such as this woman whose dentist wanted to treat her in the hospital instead of the office--are covered by the Americans with Disabilities Act even if they have no symptoms.

Four law professors judge the judges.

PHIL PONCE: Now, the perspectives of four law professors on the term that wrapped up last Friday. Kathleen Sullivan of Stanford University; Paul Campos of the University of Colorado; Douglas Kmiec of Notre Dame University; and John Yoo of the University of California at Berkeley. And welcome all. Professor Yoo, how would you characterize the term that just ended?

JOHN YOO, Berkeley School of Law: Well, I would call this as a Seinfeld term in the sense that nothing really big happened this term, but the court took care of a lot of little questions that bother a lot of people in the country. For example, what kind of conduct in the workplace is appropriate and which isn't? Does a dentist have to treat a patient with AIDS? Do prisoners have a right under the Americans With Disabilities Act? These are questions that—and does your right to an attorney-client privilege end after you die—these are questions that affect everybody in the country much more so than some of the big decisions last term, but they didn't catch a lot of attention this year from experts and professors perhaps because they didn't make any big constitutional rulings.

A "Seinfeld" term for the Supreme Court?

PHIL PONCE: Paul Campos, Seinfeld term?

PAUL CAMPOS, University of Colorado Law School: Yes. I'd agree with that. I'd say that this term was a Seinfeld term in the sense that it was about nothing in a certain—in a certain way. I think Professor Yoo is right, that these cases didn't capture people's imagination partially because they were about really rather picky questions of federal statutory interpretation, and the court was kind of all over the lot in their interpretation of those statutes and in the methodologies that they used. So it certainly was in the court—a session that captured the imagination, I think, of either the public or of the academy.

PHIL PONCE: Kathleen Sullivan, how would you characterize a term, and if it was sort of a pragmatic term, as opposed to a big picture term, how come?

KATHLEEN SULLIVAN, Stanford University Law School: Well, that's because the court is really dominated by moderate justices, justices of subtle nuance, differences that—a court of moderate justices who tend to split the difference and give something to both sides. For example, in the sexual harassment case, yes, they expanded employer liability for their supervisor's sexual harassment to their employees. But at the same time they gave employers a clear road map for trying to avoid liability. So the moderate justices—Kennedy, O'Connor, and to a large extent this term the chief justice—Justice Rehnquist—tend to control the direction of the court. Well, let's say there were some notable constitutional decisions, although the court was much quieter this term on constitutional law than in last year's dramatic blockbuster term.

There were three notable constitutional sets of decisions. One, of course, the court struck down—the Line Item Veto Act, telling the President that no, you can't sign an appropriations bill, and then go back and cherry pick and knock out specific items of appropriations. That's a very important decision that says, look, for 200 years Congress has passed bills, sent them to the President to sign, or to veto. And he doesn't get to go back and pick and choose. Second, as you mentioned in the setup piece, the court said that the government does have a lot of leeway, not total leeway, but a lot of leeway to pick and choose among speakers when it is handing out money, for example, to the National Endowment for the Arts. It did say that if the government were discriminating on the basis of viewpoint, for example, saying no Democratic artists or no Republican artists or no feminist artists, or dissident artists need ever apply, then the 1st Amendment might kick in, but otherwise the government can say no indecent art.

But in the biggest surprise of the term the Supreme Court really brought back property rights this term. It said in three cases that were little noticed that there are constitutional limits on government's power to take from the rich and give to the poor, or take from the rich and keep for the public fifth—it struck down a forfeiture and a surprising opinion in which Justice Thomas, one of the court's most conservative members, joined four liberals to say a criminal couldn't have all of his cash that he was trying to take out of the country taken away and forfeited just because he didn't comply with currency reporting laws. It also said the Congress couldn't force a coal company to pay health care benefits for miners that it employed many years ago.

PHIL PONCE: Before you give us too much detail on that I'd like to get Doug Kmiec's reaction to the court term. Kathleen Sullivan, just—the moderates appear to be in charge. Do you agree with that characterization?

DOUGLAS KMIEC, Notre Dame University Law School: Well, I think this is a pragmatic term. I don't know if I'd call it a Seinfeld term. I think the question that's interesting to ask is whether this is a one time event where the court is taking a rest from blockbuster opinions or whether this is, in fact, an institutional choice on the part of the Rehnquist court. You know, Alexander Hamilton called the Supreme Court the least dangerous branch. Well, if they keep taking cases of statutory refinement and interpretation, they may be the least noticed branch, and that might be quite deliberate. It may be, in fact, the ultimate institutional manifestation of a court that wants to take relatively few cases. They only took 91 this year, a few more than last year, but also to confine their work to the type of work that lawyers do, basically refinement of statutory interpretation.

Smaller, bite-sized decisions.

PHIL PONCE: Doug, last year, they were making these larger pronouncements. This year smaller—smaller, more bite-sized kinds of steps. Why would they be doing that, do you think?

DOUGLAS KMIEC: Well, I think, quite frankly, this is a chance to manifest that they want the democratic process to rule, rather than the judicial branch. That is quite a profound change in the American landscape. For the last three decades or so we're used to having major rulings on abortion, assisted-suicide, religious freedom, affirmative action. In part, the Rehnquist court may be sending a signal, Congress, you're the one to speak now. Now there are some anomalies in this round, as well. Justice Thomas, I think, is really a justice to watch. He's starting to come into his own as Kathleen Sullivan mentioned. He ruled using the excessive fines clause that is in the 8th Amendment to prevent a grave injustice to an individual citizen who would have otherwise been disproportionately punished. He also suggested that he might even overturn a 1798 precedent, Caulder Vs. Bull, to restrengthen or to greater strengthen property rights to protect citizens against overbearing economic regulation. Justice Thomas is really becoming someone who uses history very carefully, very aggressively to stake out opinions, not always conservative opinions.

The big surprise: Justice Thomas.

PHIL PONCE: John Yoo, you clerked for Justice Thomas. Do you agree with Doug's assessment as to Thomas's emergence?

JOHN YOO: I think that's right. I think actually it's Justice Thomas and Justice Breyer this term really finding their own judicial voice for the first time. I think two terms ago with the Lopez term—cases like that—they started coming out, but this term they both staked out some very aggressive positions, the civil forfeiture case for Justice Thomas, the line item veto dissent for Justice Breyer, where Justice Breyer really became the most what we called the functionalist member of the court, where he's most willing to allow the government to organize itself however it pleases to achieve an efficient result. Justice Thomas, on the other hand, is really coming out, I think, as one of the libertarian individual rights justices some people gave him credit for. This is just a normal progression of a clear—justice on the court.

PHIL PONCE: Kathleen Sullivan, who do you think the most influential justices are right now?

Who's up and who's down?

KATHLEEN SULLIVAN: Well, now, as for the last four years, I think "the" most influential justices continue to be Justices O'Connor and Kennedy, who sit astride the center of the court and whose vote really determines whether the court will go in the liberal or a conservative direction. And that's so even when the court is interpreting statutes, and not the Constitution. It was really the court who had to decide what Congress has really meant when it passed the disability act, and this term it put real teeth in the disability act by saying it covered prisons and by saying it covered asymptomatic HIV, which causes the AIDS. And it also put real teeth into the provisions of the anti-discrimination laws that protect workers against sexual harassment. So even in the statutory context it's really I think Justices O'Connor and Kennedy, Reagan appointees, but quite moderate, and quite willing to go in different directions, depending on how they see it, who control the outcomes of most cases.

PHIL PONCE: Professor Campos, in your opinion, anyone whose influence might be diminishing?

PAUL CAMPOS: I think actually Justice Scalia's influence may be diminishing. I think that perhaps the most striking evolution that has taken place among the members of the court over the last few years has been Justice Scalia's striking marginalization as he attempts to strike out his own theory of constitutional, especially statutory interpretation. I think he is being more and more ignored by the other justices in terms of trying to have a coherent theory and in terms of trying to enforce a coherent theory as statutory and constitutional interpretation, and I think he's becoming more and more of a sort of outlier and marginal figure in terms of the basic conversation that's taking place on the court.

PHIL PONCE: Professor Kmiec, do you agree with that? Is Justice Scalia becoming marginalized?

DOUGLAS KMIEC: Well, I think I'd file a somewhat mild dissent. I think Justice Scalia is working hard at articulating a coherent theory and statutory interpretation. It's not one that is perfect yet, even in this term. It seemed to me that Justice Scalia was trying to rely—he likes to rely on plain meaning. He wants to rely on the text of the statute. He's very concerned about the manipulations of legislative history that might shade the meaning, and yet he used plain meaning early in the term to expand Title VII to protect against same sex sexual harassment, and yet, in the HIV case he seemed to disregard the plain meaning of the Americans With Disabilities Act that covered HIV asymptomatic individuals, and so there's some difficulty in his interpretation theory, but I think we have to give him the benefit of the doubt to work it out.

Reflecting the mood of the country?

PHIL PONCE: Professor Yoo, in your opinion, how in touch are justices with what's going on in the country? I mean, is their current judicial stance a reflection of the political mood?

JOHN YOO: In this respect, I have to take a little bit of dissent from my friend, Professor Kmiec. I don't think it's a good thing that the Supreme Court is deciding all these sexual harassment cases, for example. We accept it, but we have to ask as a democracy do we want to use nine people to make up the rules that apply to the way every man and woman in the country interacts in the workplace? You have to look at the kind of environment these people work in. The justices are nine people; some of them are very old; they work by themselves in a Supreme Court-isolated building, a very isolated institution. And we want them to be that way, and we call them to defend individual rights. But do we want them to actually decide all the rules that apply to everybody in environments that Justices have no expertise in? In fact, I think this is an example of the court being the most dangerous branch, because they're extending into areas they have no real expertise or knowledge about, and this can happen in other areas as well.

PHIL PONCE: Professor Sullivan, your reaction to that. Is this the best body to be making these decisions?

KATHLEEN SULLIVAN: I think it's the best body we have. I'd have to disagree with my friend, Professor Yoo, a little bit on that point. Of all the courts we've had in American history this court is the most composed of judges as opposed to former politicians. All of these folks, except the chief justice, served as judges in the lower federal state courts, and they do what judges have done from time immemorial, which is to sort out the conflicts that the other branches leave to be sorted out. If Congress isn't specific, of course, the courts are the ones who have to fill in the blanks, and I think that the court is doing so in a way that, to answer your earlier question, is in sync with the American people. Most of the decisions this term were ones that you can see middle Americans in suburbia thinking we're about right and split the difference between the sides.

PHIL PONCE: Well, thank you all very much. I appreciate it.

KATHLEEN SULLIVAN: Thank you.

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