SCOTUS Interruptus: The Court Has Lost Its Damned Mind
Welcome to the third installment of Subrosas SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Courts 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. Weve 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 thats 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.?
If the Court finds that McCain-Feingold is unconstitutional as applied to the regulation of the Wisconsin anti-abortion groups ads, the law will lose much of its effect. Essentially, it could allow political advocacy groups to broadcast issue ads specifically targeting candidates up for election so long as they do not come out and say vote for the other guy. It would be a hole in the law that would be even bigger than the one the Swift Boat fuckers exploited to smear John Kerry.
Well, consider that hole blown open! Huzzah!
The Supreme Court on Monday took a sharp turn away from campaign finance regulation, opening a wide exception to the advertising restrictions that it upheld when the McCain-Feingold law first came before it four years ago.
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Congress enacted [McCain-Feingold] in part in reaction to a flood of special interest money into both parties. Throughout the 1990s, both parties had aggressively courted contributions to their allied party committees from corporations, unions and wealthy individuals for the express purpose of winning elections.
These donations, known as soft money, thus circumvented the limits on campaign contributions under older campaign laws. The McCain-Feingold law sought to end the use of soft money in part by barring corporations and unions from contributing to parties or political action committees.
The new decision brings back soft money, said Kenneth A. Gross, a Washington lawyer who represents corporations in election law matters. The significance of it is, you can use soft money to do these ads, he said. This is a clear shot over the bow by this court that there is going to be less regulation of money in politics. The fulcrum has now shifted.
While I am certainly sympathetic to the idea of unfettered free speech rights, I would be much more excited about the Courts 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 Bushs Faith-Based Initiatives) originated in the Executive rather than Legislative Branch, the prior precedent doesnt apply and Taxpayer standing doesnt 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 Bushs hands, it is magically transformed from tainted to pure. Like Jesus turning water to wine.
Whats striking about all of these decisions is not just that they are dumb. Its 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.
Entering what many expect will be the Courts final public sitting of October Term 2006, the Justices have issued 21 decisions 5-4 (based on our judgment). While not remarkable as a raw total, the figure falls at the high end of the spectrum as a percentage of cases when looking at terms in recent history. Indeed, if more than one of the Courts remaining cases are decided 5-4, OT06 would produce a higher share of 5-4 decisions than any term in the last decade.
Following Mondays session, during which the Court handed down four 5-4 decisions, more than 30% of cases this Term have been decided 5-4.
By issuing two 5-4 decisions on Thursday, that figure would climb to 31.9% the highest of any sitting in the last ten years.
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By contrast, this term the left-of-center Justices have prevailed thus far in only five of the 21 cases decided 5-4 (24%) and none have enjoyed a 5-4 victory since April 25, when the Court handed down Smith, Brewer and Abdul-Kabir. The Courts more conservative members have had a comparatively more successful run in 5-4 cases, forming majorities in 11 of 21 cases (52%). The Courts most successful member of all, of course, has been Justice Kennedy who voted with the majority in every 5-4 decision issued thus far.
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. Hes like the New York Yankees of the Supreme Court. Except hes actually having a good year.
All jokes aside, liberals are not only not amused at the Courts decided turn to the right, but theyre petrified for the future.
Presidential elections and judicial selections matter, the Supreme Court demonstrated Monday in a series of 5-4 rulings that underlined the Court's move to the right.
President Bush filled two high court openings early in his second term with Chief Justice John Roberts and Justice Samuel Alito. They wrote the main opinions in rulings that relaxed rules on corporate and union political spending, limited students' speech and shielded the White House faith-based program from legal challenge.
With its term rapidly nearing an end, the Court has perhaps the biggest issue of the year still to decide: whether public school districts can take account of race in assigning students to schools. Many Court watchers are expecting a similar ideological split, with conservatives limiting the use of race.
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?
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