NEWS: SCOTUS Interruptus: The Court Has Lost Its Damned Mind

POLITICS: SCOTUS Interruptus: The Court Has Lost Its Damned Mind

Welcome to the third installment of Subrosa’s SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Court’s important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their website here.


Call it Black Monday for rationality. We’ve already discussed the positively moronic Morse v. Frederick case a bit. There, the Court ignored any notion of how far the “schoolhouse gate” referred to in prior student speech cases (most notably Tinker v. Des Moines.) While it was doing so, it asserted that it was somehow reasonable to assume that the phrase “Bong Hits 4 Jesus” was pro-illegal activity. Finally, it endorsed a lower standard of review for subject-matter regulation of speech, so long as that regulation has to do with keeping kids from talking about drugs. In other words, it was a total mess.

But that’s not all! Remember a few months ago when I wrote this about the oral arguments in F.E.C. v. Wisconsin Right to Life, Inc.?

Well, consider that hole blown open! Huzzah!

While I am certainly sympathetic to the idea of unfettered free speech rights, I would be much more excited about the Court’s ruling if I felt it was in any way supported by precedent or motivated by anything other than a judicial hard-on for the white-collar sector. After all, in the above two cases the Court basically said that the First Amendment protects corporations more than it does students. Solid.

Moving on, in Hein v. Freedom From Religion Foundation, Inc. the Court closed off an avenue that allowed individuals to challenge pro-religious government actions. Here, just as in Wisconsin Right to Life, the Court sidestepped precedent that should have led it to one conclusion and gleefully chose the other.

Prior Supreme Court cases had established that taxpayers could bring challenges in federal court if their money was being used to favor religious entities in violation of the Establishment Clause. But in Hein, the Court invented this distinction: Because the government act at issue here (President Bush’s Faith-Based Initiatives) originated in the Executive rather than Legislative Branch, the prior precedent doesn’t apply and Taxpayer standing doesn’t exist. Forget the fact that the money that Bush used to put into the programs was given to him by Congress. Once the money gets into Bush’s hands, it is magically transformed from tainted to pure. Like Jesus turning water to wine.

What’s striking about all of these decisions is not just that they are dumb. It’s that (in addition to the totally awesome opinion in National Association of Home Builders v. Defenders of Wildlife which weakened the power of the EPA to protect endangered species from having construction take place in their habitat) they were all decided on a 5-4 vote. And in every single one the so-called “swing” voter on the Court voted with the Conservative side.

This is not a new phenomenon. In fact, this has been happening with alarming regularity since the appointment of Justices Roberts and Alito.

For those of you who are visual learners, ScotusBlog did this somewhat creepy pictogram of the decisions. Look at how smug and powerful Justice Kennedy is. Winning all the time. He’s like the New York Yankees of the Supreme Court. Except he’s actually having a good year.

All jokes aside, liberals are not only not amused at the Court’s decided turn to the right, but they’re petrified for the future.

The case to which the article is referring is Meredith v. Jefferson County Board of Education, and the opinion could be delivered as early as today, the last day of the scheduled term.

Anyone want to bet what the decision and voting breakdown will be?

Hmm, that's a tough one. Side with the individual''s constitutional rights or a school board's "right" to not transfer him because of his skin color. Could go either way.

Oh snaps!

Meredith 5-4,

Kennedy has been quoted saying " racial balancing is patently unconstitutional" during an affirmative action case. He seems to be the deciding factor in the freaky pictogram. Unless of course your "anyone wanna bet on the decision?" question was meant rhetorically in which case kindly pretend this post isn't here.

Nope, I meant it. And I agree with your assessment. All Hail Justice Kennedy! The Most Powerful Person In Government and the True Philosopher King!

Thought you'd like that. I put it in for B. Not that he'll read this, but whatevs.

McCain-Fiengold deserves to be turne-over outright as the unconstitutional piece of trash that it is. It is absurd to me that a site which relies on the absolutel freedom of speech and expression could support a bill that restricts the political speech of a group of people. And before we harp too much on the Swift Boat vets (who were accurate in their depiction...READ THE BOOK), let's not forget to include MoveOn.org to that same group who have exploited the loopholes in the legislation.

That's fine, because the right to dissent about anything and anytime is what this country was founded upon. I reserve the right to attack any politician elected who doesn't serve the best interests of the country as I see it. Likewise, I expect no less from the other side of the political spectrum.

The left has a real problem lately (Fairness Doctrine which is a joke) with it's posturing to silence the opposition. Why? Defend your positions. Argue the points...and America wins.

While McCain-Feingold is certainly no panacea, the issue is far, far more complex than you're making it out to be. It's not just a simple case of political speech.

A) no, they were not in any way "accurate" about their depiction
B) cite the book to which you are referring, please.

Never said they didn't.

What on earth are you talking about?

This is an unmitigated disaster.

Results are in

Meredith v. Jefferson County (Meredith 5-4) (minimizes race-based school assignments)

Panetti v. Quarterman (Panetti 5-4) (Reaffirms 8th amendment, can't fry the mentally ill)

Leegin Creative Leather Products, Inc. v. PSKS, Inc. (5-4 Leegin) ( This decision ended a 96 year old ban on minimum pricing agreements, which sounds like it is going cause a lot of BS extra litigation. )

Subrosa, all the jargon about the Leegin Case kind of went over my head. Any chance you could break it down for a lame man, does this pose much of a threat to other aspects of anti-trust law?

If you're such the crusader for free speech here, how come you seem to have no problem with Morse v. Frederick?

Hypocrisy maybe?

Okay, so let's just say the Swift Boat Veterans were completely right about their depiction of Kerry. You say "READ THE [Swift Boat Veteran's] BOOK". Are you making an argument here for Bush's military service against Kerry's as a qualification for President?

Ha!

Yeah.

Republicans set the precedent for that behavior.

Agreed.

Yes. I'll do this later, probably in another post. I work on the plaintiff's side of antitrust law. Not having read it yet, I can tell you this decision is really, really not good.

Everything else went pretty much as I'd expected. Nice decision in Panetti, though. I thought they were going to punt on a different issue.

john paul stevens' dissent in the frederick case, however, might be the best legal literature since tinker. hang on john paul. don't die till we elect edwards.

Gee, Subrosa, why do you hate America?
I bet if it was America vs Dirty Commie Hippies, you'd totally be all like "uuuh, the supreme court is gay."

Er...sorry. Hey, great article. I tried reading the full description of some of those issues from the official sites, and it's nice to have someone break it down into a little more understandable dialogue.

While I will revisit this after I take the bar, and therefore have more time to discuss things in detail rather than in theory, I will say this; to boil down court decisions by "conservative or liberal," is not only confining, but illogical. Stacking the court has universally backfired; there are no pets when there is no easy way to get rid of a SC justice. You have to define them as they are; strict constructionist or progressive, or along the issues they support.

Student rights have universally been less favored than adults for the simple reason they are LEARNING at different levels, and the RIGHT TO RAISE YOU CHILD is held up higher than most other rights. To disrespect that would violate many universally held rights; the right to parenthood, right to free speech, right to free religious observance, and so on and so forth. Therefore, they lessen the rights of students not only for the effect on themselves, but their effect on other students. Additionally, school are liable to any harm that comes to the students; they are surrogate parents. Most times the court errors on the side of caution rather than expose the school to extra liability caused by students "pursuing their freedom." Fact is, they have their own time and then the rest of their lives to enjoy our constitutional freedoms. In school they have to respect the rights of other students and the school itself. Just like I couldn't walk around an office with a shirt that says, "Fuck my boss." Further, minors enjoy both the benefits and confinements of their age; they do not get tried as adults, they do not have to honor contracts they sign into, they cannot have their inheritance stolen, they have higher standards of care attributed to just as much as their speech or association rights are confined. It's the nature of the beast, for the above reason I have given. To complain about some means we should complain about all; if they should have full free speech then a 12 year old should be held to the same standard as a 42 year old. That is something I would not agree to.

On the MC-Fine laws, I need to research further, before I could comment, just as with the Exec. rulings, I suspect the Exec. came about because while congress is confined by their Legislative boundaries, that they exist solely to act as representatives of the people, the exec. branch is allowed greater freedom with their initiatives. Again, I need to read the case in context.

All in all, what bothers me most is this notion that the courts are going down the tubes. The new justices will settle into their own "views" and it will be easy to see what they favor or do not favor, which is more accurate than just saying the two new "conservative" justices that were approved by ALL of congress, have somehow ruined the nation.

Oh, nonsense! What would the court have ruled if the sign said, "No Bong Hits For Jesus!"? Just as nonsensical. The whole thing was a joke. Stevens got that. The five morons in the majority utterly missed the point. The school principal was a bonehead. You can bet that each of the kids who held up the sign had more brains than the principal.

Today's major decision ("Meredith") doesn't bother me as much as the four listed above. Some co-workers of mine have bitched about how "Meredith" is a challenge to "Brown v. Board of Education of Topeka" - which is absurd. However, I AM a bit concerned as I feel it will allow unscrupulous elected officials to quietly ignore the fact that our public schools are horribly segregated by socio-economic status. Still, it can't be worse than the four mentioned above which say that:

Kids can't crack jokes about drugs at school, but when there's money backing any kind of inane political blather, no matter how absurd it is, it's protected. Preserving the populations of endangered animals is not nearly as important as the ability for states to place a strip-mall wherever the fuck they want, and I am now forced to fund faith-based initiatives via the federal government simply because I pay my taxes.

They really HAVE lost their collective minds, that's for damn sure (well, five of 'em, anyway). I just don't get it. They're no "Dredd Scott" decisions, even collectively....but I find "Hein" and "NAHB" really bothersome.

Yesterday was a really bad legal day.

On a lighter note, think AMK gets a bonus for being in the "green" a certain amount of times? He seems to be allergic to losing 5-4.

McCain-Feingold was a joke anyway. I hate to say it because I still kind of like McCain. The law basically put all the blame on the corporations where really they should have also regulated how politicians acted. But it is always hard to get politicians to put laws restricting their own actions. G-d bless America.

Is anyone else frightened shitless by the fact that with the courts help we the people have lost yet one more point of control over the Executive branch of our government. With the decision to remove our ability to hold the Executive branch accountable for decisions made on approving religious or faith based organizations for government funding this country is heading farther down the dark path toward loss of our religious freedom or freedom from religion all together. I may be stretching a bit far on that one but with Mr. Bush's track record and his open and blatant statements about his religious beliefs is it really that hard to imagine?

In response to nullDrock1205's typically long winded, nonsensical, and all together wishy-washy lawyer speak diatribe on the situation.

"[T]o boil down court decisions by "conservative or liberal," is not only confining, but illogical. Stacking the court has universally backfired; there are no pets when there is no easy way to get rid of a SC justice. You have to define them as they are; strict constructionist or progressive, or along the issues they support."

Please show us how "stacking" this particular court has backfired on the current administration. As wonderful as it may feel to think that the highest court in the land is not influenced by political pressure and gain it simply doesn't seem to be true. I understand that judges are supposed to be impartial and unwavering when it comes to following the letter of the law in their decisions but please don't tell me that you actually believe this to be the case. It would appear that this particular court supports the issues of the current administration and not necessarily the issues of the law or the people.

"I suspect the Exec. came about because while congress is confined by their Legislative boundaries, that they exist solely to act as representatives of the people, the exec. branch is allowed greater freedom with their initiatives."

You are correct in saying that the Executive Branch has greater freedom with their initiatives than Congress as representatives of the people. However, it is my understanding that Congress was put in place to maintain certain checks and balances over the Executive Branch as our representatives hence the term Government for the people by the people. Those greater freedoms where put in place for use in times of war and national crisis in order to speed up the process and have already been way over-stepped as in the cases of wire tapping and illegal imprisonment of "suspected" enemies of the state as just one example. In my personal opinion, funding religious or faith based activities and organizations is not a national crisis. In these particular cases the Supreme Court has decided that, in favor of the Executive Branch, we the people should have no say in where our money is being spent. Anyone who has dealt with "creative accounting" understands the principles of general funds and accounts as apposed to specific budgeting. As stated in the article when the money changes hands from Congress to the Executive Branch at this point we no longer have any say so over where that money goes. It has somehow been washed clean of our realm of control according the the decision of the justices.

"All in all, what bothers me most is this notion that the courts are going down the tubes. The new justices will settle into their own "views" and it will be easy to see what they favor or do not favor, which is more accurate than just saying the two new "conservative" justices that were approved by ALL of congress, have somehow ruined the nation."

You sir, are entitled to your opinion on the matter thanks to the freedoms and rights we in this country are so lucky to have that are slowly being pulled out from under our feet. Let's not forget that the justices that were approved by ALL of congress as you stated were selected from a group of applicants chosen by Mr. Bush. When presented with a group of bad apples you select the least rotten of the bunch. Notice I am not casting personal aspersions against these people, I do not know them or enough about them to do such a thing. However, I would like to point out that the political cards as they are can most definitely be stacked.

The Meredith v. Jefferson County Board of Education ruling today was the correct ruling. Brown vs Board of Education (BOE) desegregated the schools but also made it clear that race could not be a consideration for attending public school. This case just reinforced that decision. The crazy black lady on TV who proclaimed that this would re segregated the schools is insane. She must think that Brown vs BOE = Affirmative action. It most certainly does not!

Affirmative action (AA) has been a good tool for integrating minorities into the workplace and colleges but it is unconstitutional. It is just a matter of time before it is seen a discrimination and is outlawed. At this point in history AA is starting to be seen as discrimination against the majority but we are not yet secure enough as a culture in respect to minority discrimination to live without it.


The other cases:

The Bush faith based case was an insane ruling. Faith is by definition a religious concept and as a result Bush can't do what he did. Religion should be left at the door of government service not flaunted in disrespect to all the nonbelievers.

Not sure on the "bong hits for jesus" case. If the sign said "murder for jesus" I would have a problem with it but weed is not a real crime so he should have been permitted to use his free speech. I guess the government still sees weed as a serious crime. Not really a surprise the government is always 20 yrs behind or in this case 80 to 90 yrs behind.

Here's a crucial part you're missing: this student WAS on his own free time, He was *near* the school, not at school. He wasn't even doing anything related to the school.

...and one of them is funky...

Please bear with me, this is a complete retype after the browser lost my post. Very aggravating.

First, there was no reason for a personal attack. Nothing detracts from a positive discussion like attacks another's personal status, whether it be race, sexuality or education. You OBVIOUSLY understood me fine, in your ability to respond, so the personal attack just debases your point, not enhances it, especially because a lawyer posted the original article, and you did not choose to attack him as such.

Now, I'm speaking on the summary here and not on my own personal perusal of the documents, but the issue was less on religious freedoms or government powers destroy it, and more on the power of a taxpayer to sue based on laws, rulings or spending they disapprove of. The court historically has shied away from such discussions, because of judicial efficiency. Simply put, the system could not handle the strain if everyone who hates how money is spend either sued, or, as the case in "Stranger than Fiction,' people just chose not to pay for what they didn't like. This seems to be just a further extension of that principal, especially since the President and his policies are even further removed from the system than the Legislators. The proper balance to the Legislator are their constituents and the courts, and the proper balance to the president in such matters are the Legislators and the courts.

I can't show you on the current administration, just as you cannot show how it has helped. They have just started their tenure, and have a long time to start showing their own "true" agendas, especially since a new president is just 2 Januaries away. The proper context is look to the history of the court. I refer you to Nixon's nomination of what he thought was a Anti-Warren Strict Constructionist Burger to Chief Justice. The same one who continued Warren policies and fancied a little case known as Roe v. Wade. Ops. and also ruled against Nixon's try to invalidate the need for a search warrant and 4th amendment rights for domestic surveillance. Double ops.

To say because Bush nominated them that they somehow killed the court, and do not obey the lay is silly. And they never served the people, the Legislative and Executive branches do. They serve the Constitution, at least in theory.

This is a lot of stuff that I do not think pertain to the discussion, and would need to read the decision to see if they do.

They were under no obligation to select any of them. they could have rejected them until the sun didn't shine anymore in Allah's or Jesus' or Buddah's bright blue sky. While the vote was close "historically" for justices at 78-22, it shows more of the shameful polarization of our country than anything else; 22 of 44 democrats voted him in with confidence. Alito was even closer, so if anything your idea of 'bad apple' would solely apply to him. However, even 1 'bad apple' would not spoil this bunch, and be thankful that if a Democrat wins the presidential election, the odds are good that they can throw in their own 'bad apple' to offset it; there is hardly any times that a president doesn't get to put one justice in.

Question.....

Could you still sue Congress for GIVING the money to the Executive branch? Just don't make the Executive branch the main target and focus on Congress. Yes? No?

So Jesus launders money now? Man maybe I should start going to church. I just wont bring my bong.