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Burden of Proof

U.S. Supreme Court: 2000-2001 Term Begins

Aired October 2, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: We're live at the United States Supreme Court, where the new term has begun.

Today, we're on the outside, but will cameras be allowed on the inside?

Hello and welcome to BURDEN OF PROOF. All this week, we're celebrating our fifth anniversary of BURDEN OF PROOF and today, we're live from the United States Supreme court.

ROGER COSSACK, CO-HOST: And, as usual, the high court is holding its session behind closed doors. But there's a push to open those doors. Recently, former independent counsel Ken Starr discussed the issues of cameras in the court in an interview for CNN.com/law.

(BEGIN VIDEO CLIP)

VAN SUSTEREN: Do you think we will have cameras in the Supreme Court?

KEN STARR, FMR. INDEPENDENT COUNSEL: Yes, I think it's inevitable, and I think it's proper. This is very important decision- making that's going on. It's the public's business. And these are professionals involved in it. These are not lay people, many of whom, obviously in a jury trial setting, are there because they've been compelled to be there. They've got a jury notice, or they're a witness, or they're a defendant, and what have you.

So, those kinds of sort of fairness and privacy issues don't loom at all. I think it's a good thing, but it's not going to happen for a while.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Capitol Hill is Republican Senator Arlen Specter, who co-authored a bill to bring cameras into the United States Supreme Court. And from New Haven, Connecticut, we're joined by law professor Akhil Amar.

COSSACK: And in Los Angeles, we're joined by author and former Supreme Court clerk Eddie Lazarus. And here in Washington, Brian Jones (ph), Constitutional law professor Paul Butler and Heather Cutchens (ph). And in the back: Meghan Scott (ph) and Dan Miller (ph). VAN SUSTEREN: And joining me here at the United States Supreme Court is CNN's Supreme Court correspondent Charles Bierbauer.

Charles, there are no cases involving the abortion issue currently on the agenda for the United States Supreme Court this term, yet there are demonstrators on both sides outside the court. Why?

CHARLES BIERBAUER, CNN SUPREME COURT CORRESPONDENT: Well, it is not unusual, Greta. It's the first day of the term. The first day of the term last year there were demonstrators on the abortion issue here and there was not, at that point, an abortion case on the court's agenda, though, one came along later in the term, and it was the important one where the Court ruled that the state of Nebraska could not bar the late-term abortion procedure under the way it had constructed it.

But the abortion case is one that raises, because it's a high- profile issue in the campaign, in the political campaign. The justices here would tell you they are not about politics but outside the court politics is a concern in terms of who the next justices will be. We hear Mr. Bush, Mr. Gore saying what kind of justices they might appoint.

Of course, none of these people, and I watched all nine of them this morning, since I'm the camera in the court, gave any signs that they are ready to retire.

VAN SUSTEREN: And speaking of cameras in the court, let's go to that issue and Senator Arlen Specter.

Senator Specter, will there be cameras in the United States Supreme Court?

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Yes, there will be, Greta. And I think they'll be during our lifetimes, and I think we'll even see Justice David Souter on the Court notwithstanding his famous statement that they get their ruling over his dead body. I think there will be cameras because the Supreme Court makes very critical decisions, all the way from life, pro-choice, pro-life issues, to the right to die, to capital punishment. And they have taken over a wide variety of public policy matters, really sort of challenging.

VAN SUSTEREN: Let me ask you, I mean that sounds all good and important, Senator Specter, but where is your muscle? How are you actually going to get it done? I'm sitting here. I'm sitting on the outside, not on the inside. There are no cameras there now.

How are you actually going to get them to open those doors?

SPECTER: Well, the Congress of the United States has the authority to establish the court's jurisdiction. We set the number at nine. We pick the day when they start. We establish time limits on criminal trials, time limits on -- on habeas corpus. There is an issue here of separation of power but I think when showdown would come Congress would have that authority. But, perhaps, more important than the ultimate authority, the bill, which Senator Biden and I introduced, has started a dialogue and I believe that the Court really ought to open its chambers to TV. Right now, you can walk in there this morning, if you have a note pad, you can walk in there and make an artist's drawing. They release video -- audio tapes several months after the session and when they decide such important issues, it ought to be open to the public's right to know, to see that they are doing. And I think Congress has the authority, but I would like to see the Court do it on its on.

COSSACK: Akhil Amar, doesn't any law that Congress passes, including a law that would say that Congress would have to -- the Supreme Court would have to allow --would have to allow cameras in the courtroom, wouldn't they -- wouldn't the Supreme Court have the final word over this? and if they said: You know, we believe that a camera in the courtroom may have such an effect that it would, perhaps, prejudice the litigants before us, couldn't they just say: No, it's not coming in.

AKHIL AMAR, CONSTITUTIONAL LAW PROFESSOR: I think they could try to, but I agree with Senator Specter that it would be a stretch given Congress' constitutional authority to regulate the appellate jurisdiction of the Supreme Court. And he identified a whole bunch of ways in which that's done. As a compromise solution, what they should do, immediately -- I agree with everything the Senator said -- but as a compromise solution, imagine that today we decided to -- the Supreme Court on its own, just decided to put online and in real time, maybe a half hour after the oral argument, a transcript on its Web site of, word for word, what happened at oral argument.

VAN SUSTEREN: Akhil, you talk about compromise, why are we in the business of compromising with the United States Supreme Court. Let's face it, they work for us, they decide important issues, why are we even in the business of compromising, why should they be able to keep us out of there?

AMAR: They shouldn't, but they are not going to do it on their own immediately. They've got three reasons -- I don't buy them -- but here they are: One is the grocery store argument. They don't want their faces splashed on television so they can go to the grocery store and not be gawked at by people.

VAN SUSTEREN: Good put the cameras on the lawyers then, we will not put them on the justice, next ones.

AMAR: Then they say, well, the lawyers will grandstand for the camera and that will change the proceeding. And then the final thing they say is, the networks will sound byte and just pick one little snippet that's misleading. I don't buy those arguments, but my proposal of immediately today putting everything on-line on a Web site avoids those three problems.

COSSACK: Paul Butler, you know, listening to all three of the arguments, and feeling particularly bad, Greta, I must say, that don't even go along with you, I say: Put the cameras right on the judges too. They don't have any greater right of privacy. VAN SUSTEREN: I say put the cameras on them too. I am ready to take the camera right here. Let's bring it right up. I have no problem.

COSSACK: Paul, they don't have any greater right of privacy in their position as a Supreme Court justice than anyone else.

PAUL BUTLER, CONSTITUTIONAL LAW PROFESSOR: They have less of a right or privacy because they are public figures. I mean, give me a break. I'm a big fan of sunshine and fresh air. And I think it would really be helpful, given important the court is, if American citizens could see them at work from day-to-day, and realize how important the work they do is.

That's why the stakes in this upcoming election are so high because the Supreme Court justices, which ones -- there are new ones who may be appointed, and that is so important. I don't think most people get that. If there are cameras in a courtroom, they would have an opportunity to see.

VAN SUSTEREN: Eddy Lazarus, you clerked in the United States Supreme Court. What do you think the Supreme Court would be saying if they heard our discussions out here?

EDWARD LAZARUS, AUTHOR, "CLOSED CHAMBERS": Oh, I think they would they in their heart of hearts that everything we've been saying is absolutely right. Justice Blackman used to say: After all, it is the people's court, not the justices'. But, at the same time, they don't like too much scrutiny, they try and keep law clerks from saying anything even long after they have left the court. They don't want that kind of discussion going on. And so they are going to fight like cats and dogs to keep cameras out.

VAN SUSTEREN: Senator Specter, is it going to happen or not in the next few months before the election, what there be cameras? What is going to happen to your bill?

SPECTER: Well, it can't happen before the election. But the dialogue has started. I believe that once the public understands the nature of the issue that there will be a lot of public clamor.

I've had quite a response from the bill that has been introduced, and we see so many decisions made by the court where they are declaring unconstitutional acts of Congress because they say there hasn't been a considered judgment or, in effect, the Congress hasn't thought it through.

And when they are deciding these matters of tremendous importance, which are issues of public policy, and arguably belong in the legislative domain, they become really sort of a super legislature. When all this filters through, I think there will be quite a public clamor for television in the court.

COSSACK: All right, Senator Specter, thank you for joining us today from Capitol Hill. As you watch our program, by the way, log on to our Web site at cnn.com/Burden. You can vote in our cyber jury. Today's question is: Should cameras be allowed in the U.S. Supreme Court?

When we come back, we'll discuss some of the cases before the high court bench this session.

But first, as we celebrate our fifth anniversary here on BURDEN OF PROOF, take an inside look at our program and its history, with this preview of a special presentation. You'll note an interview with Greta, conducted at a familiar setting, the U.S. Supreme Court.

(BEGIN VIDEOTAPE)

VAN SUSTEREN: I have more than one fear about this five year show, and maybe Roger and I should have talked to each other before we did this, because I smell a rat. I smell a conspiracy.

I worry that the staff is going to do things like pull old tapes of us, including pictures of me doing William Kennedy Smith about eight or nine years ago. If anyone had the tape, and I think only Roger and I do, of the pilot we did for BURDEN OF PROOF, which has never seen air. It was a completely different format. And I can tell, it was the worst piece of television I have ever seen in my entire life.

(BEGIN VIDEO CLIP)

VAN SUSTEREN: And we want to thank those of you who joined us.

COSSACK: I'm sorry.

VAN SUSTEREN: Roger, we will see you tomorrow.

COSSACK: I am sorry, we will see you tomorrow.

(END VIDEO CLIP)

(END VIDEOTAPE)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to cnn.com/Burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chat room.

COSSACK: This morning in Washington, the U.S. Supreme Court launched its new term. Before the court: Should pregnant women be prosecuted based on drug tests conducted at a hospital without a search warrant? And should pro golfer Casey Martin be allowed to ride in a cart for PGA events?

Paul, I want to talk to you about another case that is before the Supreme Court, and then we will get to the others of course, is the issue about whether or not a state can have a checkpoint where cars are stopped without probable cause and a dog would be allowed, therefore, thereafter to sniff and perhaps search for drugs or contraband. The question of course is: Is it a search? And the question of course is: Do you need probable cause?

BUTLER: It is a really interesting case. Everybody is encountered with these roadblocks that the police just spring on you in the middle of a street. At this roadblock, people had to get out of their cars, produce their registration and their license and in the meantime, a dog was let around the dog to sniff to see if there were drugs. If there were drugs found then the person was arrested.

Now the Supreme Court has said that these kinds of roadblocks are OK if their purpose is public safety. You can check for drunk drivers to see, for the safety of the roads.

So far the court hasn't allowed those searches, if the purpose is to enforce criminal law, to make arrests, and that's what the issue here. The broader issue is whether American citizens have a right to be left alone when there's no suspicion of a crime.

VAN SUSTEREN: Paul, let me toss this to Akhil...

COSSACK: Greta, let me just follow up a second with Paul. What about the argument that the government would make that this is for safety, that we are looking for evidence of perhaps someone driving while being under the influence of a drug.

BUTLER: Well, the interesting thing is if the government actually made that argument, then roadblocks would probably would be OK. So the court really does have to go look at the motives of the police officers, and since the motive here was to make arrests, to enforce the criminal law, then if the court follows precedent, it has to say that these searches are not OK.

COSSACK: Greta, go ahead.

VAN SUSTEREN: Akhil, what Paul mentioned was the issue basically of our privacy. I realize that this case involves the Fourth Amendment, unconstitutional seizures, but the Supreme Court will make a decision whether our privacy can be disturbed when we are driving down the street with a dog jumping in the car and sniffing the car.

I got to tell you, I find that a very interesting issue, in light of the fact one of the reasons that they want to keep cameras out of the court -- out of this courtroom is to protect their privacy. What about that?

I mean, here they rule on privacy, yet they won't let us in.

AMAR: Well, I think the Supreme Court has several double standards. Freedom of speech prevails pretty much everywhere except for the Supreme Court itself. When you walk into the building actually, if you are a member of the public, you can't take notes. You are regimented far more than basically anywhere else in America in a free society. They are quite harshly critical, the justices are, of people who try to cover them with the same kind of scrutiny that the other branches of government, in fact, are covered. I think you make a good point.

VAN SUSTEREN: Eddie, Let me switch to another topic, and that is the pro golfer who has a disability and wants to ride in a cart during tournaments. The American Disabilities Act, does that cover a golf tournament? Do you think the Supreme Court is going to say it does so that he will be able to ride a cart during the competition?

LAZARUS: I think it is going to be a close case, Greta, but when you get down to the Americans Disabilities Act, the big case this term is the case where the court will determine whether states are immune from coverage under the Disabilities Act. That is going to be another one of these huge states' rights cases that have really been where the rubber meets the road at the court for the last couple of years.

COSSACK: All right, let's quickly talk to Paul about the Ferguson versus Charleston. That is an issue in which the hospital takes the urine test of breath pregnant women, and if they find there is drugs, they turn it over to police, and these women gets arrested. Is this a search without a warrant? and is a warrant necessary?

BUTLER: It absolutely is a search. The Supreme Court says a search is when you have a reasonable expectation of privacy, and certainly you do to your bodily fluids. The issue is whether the hospital can do that without a warrant. It seems to me, if the court just uses its common sense here, and thinks about the deterrent effect it would have, if you knew, when you go to the doctor and get a test that those results will be turned over to the police.

I mean, we want to encourage women who are expecting babies to get all of the health care they can, and that would discourage people, the people who really most need the doctor's care, the people who are not treating their bodies the way that they should. So, again, I hope the court will use its common sense when it makes this decision.

VAN SUSTEREN: All right, we are going to take a break. We'll be back with more from the Supreme Court.

In the meantime, we will take another look at the fifth anniversary of BURDEN OF PROOF, or said another way, the five years Roger has put up with me, and I have put up with him.

(BEGIN VIDEO CLIP)

COSSACK: What legal journalism does is offer the opportunity for people to see what goes on inside their courtroom and to make critical decisions about the law and how it's implemented.

I mean, I think one of the things that is the most important that we have done recently is talk about DNA and how we have seen people, who through no fault of anybody's, who have been falsely imprisoned and perhaps even been on death row. And now with the advent of DNA, you know, we see that perhaps this -- these things shouldn't happen, and we should review the death penalty. UNIDENTIFIED JUDGE: It is the order that you are to be immediately released by the Montgomery County sheriff as a free man.

COSSACK: This is the kind of thing I think that legal journalism and BURDEN OF PROOF should be doing. I mean, this is the kind of thing that people in America should be talking about.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF. I'm outside the United States Supreme Court where day one of the first term began this morning.

Akhil, we have an election coming up. All nine justices showed up for work today. There are no vacancies. Do you think the justices are waiting to see what happens in November before anyone announces a retirement?

AMAR: The justice's historically have been hesitant to step down in the middle of a political cycle. And, of course, Mother Nature can always intervene. There can be an illness or something else. But if they're given a choice about how to time their resignation, they'd prefer to do it, basically, in a way that doesn't overly politicize the court.

In some ways, though, that calculation itself is a very political one. We might have been better off if the founding fathers had basically given us fixed terms, say 15 years or mandatory retirement at a certain age, so that justices wouldn't be able to decide exactly when the time was right, they'd just have to do it.

COSSACK: Paul Butler, is the Supreme Court politicized? You know, we've heard Akhil talk about ways they can avoid at least looking like it it's politicized, but it is politicized isn't it?

BUTLER: Well, when you look at the way it votes on things like abortion rights, about the death penalty and affirmative action, it sure seems like it follows some of the political trends that are going on in the larger political world. So I think the answer is, yes, it's a political institution.

VAN SUSTEREN: Eddie, is it political? Do you think -- do you agree with Akhil that they sort of don't step down at this particular time because it's an election year and they're not political, or do you think they're waiting for the results?

LAZARUS: Well, I think it's a combination of both. They don't step down this time of year because they, you know -- for example, Chief Justice Rehnquist was strongly rumored to be ready to resign had Clinton lost to the elder Bush. So, you know they're following the election returns. But at the same time, I think Akhil makes an excellent point when he says it is a political act to wait, because that gives them the opportunity to pick and choose whether they're going to step down or not. VAN SUSTEREN: Akhil, how many decisions generally last term -- I mean, can you give me an idea? -- were 5-4 so we have some idea of how important even one vacancy is?

AMAR: Out of the 73 important decisions that the Supreme Court handed down last term, 20 were 5-4.

COSSACK: Paul, is it important, therefore, this election for voters to think about who might be replaced on the Supreme Court? Is there the possibility of that many vacancies? And second of all, could a change establish things that we take for granted now?

BUTLER: Oh, sure. The number that lawyers are throwing around is three vacancies are possible in the next four years, which means that either Al Gore or George Bush would have the opportunity to profoundly change a lot of American law regarding issues like abortion, like states' rights. I mean, why are we even talking about states' rights in the year 2000? These are the kinds of issues -- affirmative action, death penalty -- that are going to be before the court. People say there's not much of a difference between Gore and Bush on this. The differences between the two are radical.

VAN SUSTEREN: But, Paul, you know, there are these wildcards. I don't think President Bush really anticipated the type of decisions that Justice Souter would write when he put Justice Souter on the bench. Don't you think there are a lot of wildcards out there?

BUTLER: Oh, sure, so that's a lesson for George Bush or Al Gore, that you've got to make sure that your Supreme Court candidates are going to practice the kind of law, if you will, or decide, make decision the way you think they should. So I think Souter establishes even a higher litmus test now than before.

COSSACK: And, Greta, you know who Souter is? The guy that said, that camera will get in that courtroom over my dead body.

VAN SUSTEREN: And we're working at it, Roger. We'll get it in. Another five years.

COSSACK: All right, that's all the time we have for today. Thanks to our guests. Thank you for watching.

Today on "TALKBACK LIVE," should there be a national standard for drunk driving? Tune in and weigh in today at 3:00 p.m. Eastern time.

VAN SUSTEREN: And tune into BURDEN OF PROOF all week as we celebrate our fifth anniversary. On Wednesday, our guest will be former independent counsel Ken Starr.

And join us tomorrow for another edition of BURDEN OF PROOF. We will see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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