Slate's Jurisprudence: End of High Court's Session

Alex Chadwick talks to Slate legal affairs writer Emily Bazelon about key Supreme Court decisions expected as the current session comes to a close. On Tuesday, the court overturned of the conviction of accounting firm Arthur Anderson for its role in the Enron scandal.

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ALEX CHADWICK, host:

From NPR News and Slate magazine online, this is DAY TO DAY. I'm Alex Chadwick.

Coming up on the show, President Bush covers a range of issues at a White House news conference. We'll hear some of what he had to say.

First, the lead. The Supreme Court out with several rulings today; most notably, the court has overturned the conviction of the Arthur Andersen accounting firm in a case related to the Enron scandal. The justices said the original trial judge's instructions to the jury in that trial were flawed. The case involved the shredding of Enron-related documents by employees of Arthur Andersen. Emily Bazelon is a legal analyst for DAY TO DAY and for our partners at the online magazine Slate.

Emily, explain, please, what was at issue in this case, and why have the justices thrown out the verdict?

EMILY BAZELON (Slate): Well, this case dates from the fall of 2001, and this is before the official investigation of Enron by the Securities and Exchange Commission started but when news was starting to leak out that some investigation was likely. And the lawyers at Arthur Andersen had a meeting with employees there in which they said that the employees should start destroying a lot of documents pursuant to Andersen's long-standing policy about that kind of document shredding. And it was a policy that Andersen had previously ignored but the lawyers were, at that time, invoking.

And the court that convicted Arthur Andersen was interpreting a federal statute that made it a crime for someone to, quote, "corruptly persuade" someone else to shred documents. And the question was whether the lawyers at Andersen who had encouraged the employees to shred the documents had to know whether what they were doing was illegal. And the lower court said, no, any kind of improper purpose involving the document-shredding was enough for the conviction. And the Supreme Court today said, no, that's the wrong standard. The statute talks about having to knowingly corruptly persuade someone to shred documents, and we're going to stick with that language closely.

CHADWICK: So you have to really know that there's evil intent there and that's what you're trying to bring about. Is this a really broad principle that might go to other jury instructions?

BAZELON: Not really. It's a pretty basic sort of statutory interpretation, where Justice Rehnquist's opinion is saying, `Look, we really need to give people fair warning about what is criminal when we have a law making something a crime.' And in the wake of Enron and a lot of other scandals, Congress passed the Sarbanes-Oxley Act, and that law makes it clear that you're not supposed to go around shredding documents once the SEC is talking about investigating you.

CHADWICK: OK. Another ruling today involves a gag order against a man who was harassing the late attorney Johnnie Cochran. Now as I recall, this order said that the man was not allowed to say anything at all about Johnnie Cochran, positive or negative, in public. What did the justices think of that?

BAZELON: They talked about this ruling as quite broad. The man at issue, his name is Ulysses Tory, and he'd been picketing Johnnie Cochran, picketing his office, demanding $10 million in payment. And the lower court had found that Ulysses Tory was libeling Johnnie Cochran and that the only way he was going to stop was this very broad order. But the Supreme Court didn't directly rule on the question of whether that very broad court order violated Ulysses Tory's First Amendment rights, and the reason the court didn't reach that question is that Johnnie Cochran has since died since this case was brought. And so the court said that given Cochran's death, the reasons for the court order were much diminished, and as a result, this injunction against the speech of Ulysses Tory was what's called a prior restraint, which means that it was an order saying someone can't talk before they have actually gotten to talk. And usually courts don't like those sorts of orders. And so the Supreme Court remanded the case back to lower courts, saying, `Hey, this is probably too broad an order.'

CHADWICK: OK, one more. In another unanimous decision today, the court gave Congress authority to tell state and local prisons that they need to accommodate the religious beliefs of prisoners. This, I guess, is in response to a suit brought by some what one might call fringe groups. Does this apply to mainline religions as well, and what's going to happen?

BAZELON: Yes. The decision today applies to prisoners of all faiths, and from the point of view of the prisoners it's a good decision. It means that if you want your prison to give you a special diet or to make it easier for you to meet with other members of your faith, that prison officials are going to have to go out of their way to do that. The law that Congress passed says that prisons can't impose a substantial burden on the religious exercise of a prisoner, and in doing that there was a tension between prisoners' rights to the free exercise of their religion and the states needing to stay away from endorsing any particular religion or religion in general. So the question here was whether the law Congress passed was really forcing prisons to give special treatment to prisoners or whether it was a neutral sort of law that simply allows prisoners to take part in their religions the same way they would if they were not in prison.

CHADWICK: Emily Bazelon writes the Jurisprudence column for our partners at the online magazine Slate, and she's a regular guest on DAY TO DAY.

Emily, thank you.

BAZELON: Thanks very much.

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