Supreme Court Lurches to Right; 2008 Election Absolutely Crucial

By: Lowell
Published On: 6/25/2007 2:33:31 PM

Today was a very VERY bad day if you care about any of the following:

1. Separation of church and state;
2. Endangered species and the environment generally;
3. Campaign finance reform;
4. Freedom of speech.

For more on the decisions in question, see here.  Also, I think that the commentary of Andrew Cohen at the Washington Post pretty much sums it up:

...The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school.

Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is so entrenched on the ground of the legal right that, aside from the global warming case decided earlier this year, it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates.

These are bad decisions all around; frankly, the only one I can see ANY logic to is the McCain-Feingold decision.  Besides that, no way.  As Justice Souter said from the bench today, "The court (and, I think, the country), loses when important precedent is overruled without good reason, and there is no justification for departure from our usual rule of stare decisis here."

In other words, the Supreme Court has now become a bunch of "activist judges," except it's "activist" in the right-wing, Bush-Cheney direction.  This is a scary situation, if you care about...well, pretty much anything that involves being an American. At this point, the Supreme Court should be the #1 issue in the 2008 election because frankly, if the Court continues moving to the right (and there's absolutely no reason to expect it NOT to do so under another Republican Administration), we can fight over all the other issues as much as we want, but they won't amount to a hill of beans if Alito, Roberts, Thomas, Scalia and Kennedy are running the country. 

Also, keep in mind that the justices on the  "liberal" side (actually, most of them are "moderates" compared to the far-right activists who currently constitute the court majority) ain't gettin' any younger.  Which is why this is such a dangerous time in America, and why the next Presidential election will be so crucial.  We Democrats had better not mess it up, that's all I have to say, and that means first and foremost nominating somebody who IS LIKELY TO WIN.  Honestly, I almost don't even care about any of their other qualities (as long as they're not drooling nincompoops) UNLESS THEY CAN WIN.  Because if we get President Romney, Giuliani, or Thompson, we're screwed, plain and simple.

Comments



Man Lowell you are so correct..... (bladerunner - 6/25/2007 2:53:25 PM)
....This should be the issue of 08. All these so called moderates are backing Bush who is nominating these right wing ass holes. That means that Tom Davis is guilty because he's in the party that's helping these cruchity old biggots get a job on the highest court. Right wing social conservatives are going to be running this country, because they are determined, so we've got to push back and show these freaks what America is really all about, freedom. Freedom to worship, and the freedom to call Bush and Cheney Ass Holes.


supreme court (pvogel - 6/25/2007 2:56:07 PM)
In my very humble opinion, The US supreme sourt is totally trashed for the rest of my life.  2008  will be about salvaging the secon half of this century.


John McCain on Campaign Finance decision (Lowell - 6/25/2007 3:00:02 PM)
While I respect their decision in this matter, it is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election.

It is important to recognize, however, that the Court's decision does not affect the principal provision of the Bipartisan Campaign Reform Act, which bans federal officeholders from soliciting soft money contributions for their parties to spend on their campaigns.

I am grateful to the Bush Administration and all those lawmakers, both past and present, who have joined us in our efforts to put an end to the corruption bred by soft money. Fortunately, that central reform still stands as the law."

So far, I don't see anything from the Democratic '08 contenders. That's what I'm interested in; I want to see them issue strong statements on these rulings.



We were warned (Teddy - 6/25/2007 3:22:50 PM)
before the last elections. Some said, Oh, the extremists won't be confirmed. Yeah. Right.

A judge can be impeached, but only on very narrow and unlikely grounds, I suspect. Or, he can be, ah, induced to resign.  Or, he can be subverted and made to change his orientation (Souter was a surprise after he got on the Court, remember). Other than these sort-of remedies, we are stuck. Oh, yes, Or, he can pass on to a greater reward in the sky.



Nope - There are 2 Other Remedies (Not Harry F. Byrd, Sr. - 6/25/2007 4:34:28 PM)
1 - Congress/the President can expand the number of justices on the court.  This hasn't been done in a long time, but it can be done (remember that FDR threatened this in the 30's after they invalidated part of The New Deal and the Court got the message).

2 - Congress can restrict the U.S. Supreme Court's jurisdiction - e.g. no habeas corpus for "enemy combatants." 



Watch It, Teddy, You're Starting to Sound Like Pat Robertson (Susan P. - 6/25/2007 3:38:05 PM)
"And, Father, we pray for additional vacancies on the Court."


Remarkable (Teddy - 6/25/2007 8:23:50 PM)
Never thought I'd have ANYthing in common with God's mouthpiece in this vale of tears.  Talk about strange bedfellow ('scuse the reference, PatR). Thank you


There is little logic to the decisions (Rebecca - 6/25/2007 8:36:53 PM)
Let me see... non-profits can now put out ads that endorse candidates, as long as they are pro-life ads. So conservative orgs can endorse candidates. Notice that this is a case-by -case decision implying that this may not apply to all non-profits. I bet if this had been a union group the decision would have come out the other way.

Also, its OK for Bush to give churches our money as long as the Congress hasn't endorsed it. Makes sense, doesn't it? So the president can do anything not specifically prohibited by Congress. -REALLLY fine, don't you think? I guess he can pick his nose in public and expose himself to foreign dignitaries since there is no law against it specifically.

Even though conservative non-profits can endorse candidates, having more free speech than before, you can't mention drugs on a banner if you are near a school. On the other hand drug companies can advertise adictive drugs on TV during prime time while children are watching. Oh, I forgot, that's legal.

If anyone has noticed that there is an inconsistency here they are right. Legally some of these desicions seem contractictory. But the decisions are consistent in one respect. They uphold the actions of anyone promoting right wing values. The arbitrary nature of these decisions is startling.

All this is starting to remind me of the Nixon era.



Bong Hits especially troubling (mkfox - 6/25/2007 11:00:51 PM)
The Court has been chipping away at students' rights in the past few notable cases (Bethel, Hazelwood) because even in these specific cases yea maybe it was OK for the school to say no, the rulings have been so ambiguous that school officials and administrators are over-reaching and over-defending the "educational mission" doctrine. After Bong Hits, it's unlikely students would be allowed to wear "legalize marijuana" buttons, or if a student wants to wear something satirical or ambiguous and political in nature but not patently offensive, that could be disallowed also simply because teachers/administrators interpret the message as being offensive or illegal.


As for the faith-based sham, (mkfox - 6/25/2007 11:13:43 PM)
it's nothing more than a Bush electioneering machine used to reward churches and charities that host Bush speaking engagements and hush them up after opposing Bush policies. Not to mention being unconstitutional for giving public funds to religious sects and houses of worship. Even if these churches promised the funds wouldn't be used for sectarian purposes, the only way to know for sure is to conduct an audit, and the government should never have to become entangled wasting time, money and resources auditing a church.


The word "Jesus" was the motivator (Rebecca - 6/26/2007 9:46:04 AM)
Anybody think the court would have taken this case if the word Jesus had not been on the banner in question?


Actually reading the appealate and SC opinions (Silence Dogood - 6/26/2007 11:06:39 AM)
I understand the logic of the argument behind the church and state quesiton, that there isn't ground to sue on behalf of the taxpayers--damages can be sought only if the plaintiff can demonstrate actual damages, and the argument that the plaintiff is harmed by having his tax monies spent improperly and unconstitutionally vis a vis the Establishent Clause cannot hold water since the money in question wasn't collected exclusively for that purpose--it could just as easily be spent on something else.  The common thread of all the precedents cited in the opinion (with the exception of Flast) is that the plaintiff in the case could demonstrate actual damages directed at themselves--in Abbington School District v. Schemp, for instance, suit was decided not on behalf of taxpayers in general but specifically with respect to non-Christian students who successfully demonstrated that organized school prayer impact their religious freedom through a violation of the Establishment Clause.  Flast is the exceptional precedent cited which confers taxpayers standing to sue under the Establishment Clause--the question the wrestled with during appeals was not only whether Flast could be expanded beyond Congressional appropriations to include Executive discressionary disbursements (the appeals court ruled that it could; Alito and the rest of the majority reversed that specific decision), the question was also raised whether prudential limitations on standing apply to the plaintiffs in this case, specifically the taxpayers.  Prudential limitations deny standing to parties which can demonstrate damages caused by a defendant but to a lesser degree than other parties who have stronger grounds for standing to control the litigation process.

Alito's expression of the majority opinion is, essentially, that a taxpayer cannot demonstrate actual damages based on the discretionary use of funds, establishment clause or no.  I happen to think this might be sound law because the taxpayer must pay to support this discretionary fund no matter what it's spent on, and he therefore cannot demonstrate that his money was improperly taken.  Alito's decision does not actually resolve the question, however, of whether someone else might hold be able to sue the Administration by demonstrating directed damages caused by a non-discretionary disbursement.  For instance, it seems to me that if a homeless Jew or aetheist were discriminated against by a faith based group which received Federal funding or if he was directly engaged with in terms of religious discussion or propoganda, that plaintiff would be able to demonstrate actual damages caused by the disbursement of the funds beyond his standing as a taxpayer, and he would consequently have stronger precedent on his side in the litigation of the case.  Less sound (but more interesting) would be a non-faith-based community support organization which could successfully demonstrate that it was discriminated against in competition for these discretionary funds on the grounds of religion.

Essentially, it sounds to me like the Freedom from Religion Foundation picked the wrong plaintiff to challenge the initiative in court.  Rather than suing on behalf of the taxpayer, the Foundation would have been well-advised to seek out a plaintiff who could demonstrate actual damages and so not have to rely so exclusively on Flast.  It's unfortunate that a program which probably DOES violate the Establishment Clause will now be able to find some form of protection from future suit through precedent established by an ill-conceived lawsuit brought by an unqualified plaintiff.



Bad cases make bad law (Teddy - 6/26/2007 11:32:33 AM)


Amen Teddy (Silence Dogood - 6/26/2007 1:03:10 PM)
Bad cases make bad law indeed.  I'm also troubled by the way the Bong Hits for Jesus Case turned out--primarily because both the student in question and his legal counsel should be beaten to death with a claw hammer for ever bringing this case so far.  Freedom of Speech is meant to protect the rights of the minority to socially express their opinion or message, whether it is controversial or not.  The plaintiff in this case, by his own admission, had no actual message or personal opinion which was expressed by his banner--he was just being a jackass.  Jackassery is not protected by law; you can't scream fire in a crowded movie theater, you can't go streaking down a busy public streak to shock people, and you can't be disruptive in school simply for the sake of being disruptive.

However, by framing its opinion around the premise that a reasonable person might construe the banner as being a pro-drug message, the Supreme Court has taken this case as an opportunity to severely limit the free speech of any student who might have an actual opinion on something, whether the "something" in question is civil rights, the war in Iraq, gay marriage, prayer in school, evolution versus creationism, his personal religious beliefs, whether the book Billy Budd is an allegory for Christ's crucifixion or if it's actually a homoerotic narrative, or whether medical marijuana should be legalized.

High school students around the nation should be infuriated, but they probably shouldn't risk complaining about this case in a potentially-disruptive way.



Get high on Jesus (Rebecca - 6/26/2007 1:22:03 PM)
I guess this would be illegal as well. 

Perhaps the case shouldn't have been brought, but much of responsibility lies with the court. It picks the cases it wants to hear very carefully. The fact that it accepted this case at all shows how whacky the court has become. Can you tell me there was not something more worth while they could have done with the time spent on this? I think this court is being run by a bunch of screwballs.



To be honest (Silence Dogood - 6/26/2007 1:27:41 PM)
I've been surprised by some of the decisions the Court has made because they've been much more moderate than I would have expected.  They've been surprisingly good at upholding due process for defendents so far,  and I was expecting them to limit the rights of the accused the same way the Administration has done.  One case not listed here at RK, for instance, involved expanding protection against unreasonable search and seizure by stating that probable cause to search a driver during a lawful traffic stop could not be expanded to justify searching his passengers, as well, and that a separate justification was needed to search them.


That may be true (Rebecca - 6/26/2007 2:34:04 PM)
While what you say may be true I think they lose all objectivity with issues related to churchiness.

In as much as three of these cases involved churchy issues like faith-based issues, a banner containing the word Jesus and the so-called right-to-life (how about our troops too?) issues, I think they have lost their objectivity.



There was nothing "moderate" about their (Lowell - 6/26/2007 4:01:37 PM)
environmental decision, as far as I can see.  And their decision a couple weeks ago on the ability of workers to seek redress for discrimination by their employers was truly outrageous.


Much like the law, it's all about interpretation. (Silence Dogood - 6/26/2007 4:29:42 PM)
Lowell, there are two ways to read the sentence, "I've been surprised by some of the decisions the Court has made because they've been much more moderate than I would have expected."  One way would be to say, 'they're actually more reasonable than others give them credit for being.'  The other way is to say, 'Wow, this isn't nearly as big a clusterf*ck as I was expecting!'

I'll leave it up to your own good judgement which way I intended my earlier comment. ;-)



Ha, good point! :) (Lowell - 6/26/2007 4:32:12 PM)
The scary thing is that, as I wrote, if the Republicans win the White House in 2008, we could have a 6-3, 7-2, or 8-1 right-wing Supreme Court.  A two-term Republican President could mean a 9-0 right-wing court.  At that point, America becomes unrecognizable, as we become Kevin Phillips' "American Theocracy."