Judicial Benchmarks : Supreme Court ends term
The Supreme Court announced four important decisions in this , the final week of its term. Chief Justice Roberts , and Justices Scalia, Kennedy, Thomas and Alito formed the majorit y in all of them.
In Morse v. Frederick, a high-school student unfurled a banner reading “Bong Hits 4 Jesus.” The principal suspended him; he sued her for violating his freedom of speech. (All justices agreed qualified immunity protected her from paying damages.)
The leading precedent was Tinker v. Des Moines, a 1968 case holding students had a right to wear armbands in protest of the Vietnam War. The majority distinguished Tinker’s political speech from Frederick’s, which the Court found could reasonably be interpreted as celebrating or advocating drug use . In light of the school’s new educational mission of preventing drug abuse, the Court found the principal could suppress the banner, whereas the result might be different if he advocated legalizing marijuana for medicinal/religious purposes. The Court rejected, however, the school’s position that it could ban any speech deemed “offensive,” noting “much political and religious speech might be perceived as offensive to some.”
In Hein v. Freedom of Religion Foundation Inc., the Court considered a challenge to the President’s Faith-Based and Community Initiatives by taxpayers who argued its activities violated the Establishment clause, and whether their status as taxpayers automatically entitled them to challenge the program in court.
Ordinarily, taxpayers may not challenge a congressional expenditure absent a showing of some individualized injury, lest every taxpayer challenge every program to which he objects. Another 1968 case, Flast v. Cohen, created a special exception for congressional expenses supporting religion. Justices Alito, Roberts and Kennedy distinguished Flast, as it concerned the activities of the Legislative, not the Executive branch . Souter, Stevens, Ginsburg and Breyer found this distinction unpersuasive and favored allowing the taxpayer challenge . It was actually Flast itself that contrasted legislative and executive activities; it had distinguished a 1952 case that barred challenge to schoolteachers’ public Bible reading, as that earlier case involved the “administration of an essentially regulatory statute.”
The most-widely watched case, FEC v. Wisconsin Right to Life, Inc., dealt Senator McCain his second political defeat of the week, though regrettably not a large enough defeat . In McConnell v. Federal Election Commission (2003), the Court found it possible that the McCain-Feingold campaign-finance “reform” act could be applied constitutionally. This week’s case distinguished restrictions on “express advocacy” (“Vote for Pedro!”), from “issue advocacy” (“McCain-Feingold is unconstitutional!”). McConnell permitted restriction on express advocacy and its “functional equivalent.” The Wisconsin group had run ads, including one in which, after the pastor asks who will give away the bride, her father responds with
instructions on installing drywall. The voiceover emphasized that some decisions should not be delayed, i.e., Senators Feingold and Kohl should allow Senate votes on judicial nominees. (Few reports have noted that Feingold’s law was used to suppress criticism of him.)
Justices Roberts and Alito found that the ads enjoyed First Amendment protection. Whereas McConnell held the compelling interest of limiting contributions for political favors justified restrictions on express ads, no such concerns justified restricting issue ads. The four dissenters feared that issue-ad buyers could still “improperly” buy influence and stated that advocacy groups could still advertise in newspapers, which of course love the law—it doesn’t restrict their speech.
In the fourth case (actually two joint cases), Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education, the Court found that, in the words of Chief Justice John Roberts, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In short school districts in Seattle and Louisville were using race to ensure “diversity” among their student populations; the Court ruled that this violates the Constitution’s guarantee of equal protection to individuals. The Left is decrying the decision as practically overturning Brown v. (Topeka) Board of Education. We tend to agree with the majority that it rather fulfills the precedent.
The cases show a sharp contrast between Scalia and Thomas, who insist upon logical consistency, and Roberts and Alito, who accept partial victories. The new justices prefer to distinguish precedents rather than overturn them, observing Roberts’ maxim that if it is not necessary to decide more, it is necessary not to decide more. On the one hand, the Roberts/Alito approach has been successful in creating a majority with Kennedy. On the other, the net effect could be muddier waters.
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