Supreme Court Delivers Five, Important 5-4 Rulings—The Roles Played by Justices Roberts and Alito Are Key

On Thursday, June 28^th, the Supreme Court ended its term, by issuing several important rulings, five of which were extremely important, 5-4 rulings, in which Chief Justice Roberts and Justice Alito combined with Justices Scalia, Kennedy and Thomas to bring narrow victories over the four more liberal Justices, Stevens, Souter, Ginsberg and Breyer. A review of these five cases will manifest their importance. Conservatives will applaud President George Bush for two excellent appointees; liberals will be unhappy. But whatever one’s political persuasion may be, an understanding of these five rulings is important.

The summaries that follow are admittedly laced with this writer’s opinions. But there is nothing wrong with that. This is a private picnic event, and these statements do not necessarily represent the opinions of either my church or my city or of Jim & Sarah Olson. They are the considered thoughts of one who has followed the Supreme Court with great interest for many years. I hope my comments can help all of us to better understand the state of our Constitution.

Below are the five cases.

Parents Involved in Community Schools v. Seattle School District No. 1

On June 28, 2007, the Supreme Court announced it ruling on an affirmative action issue that arose in Seattle, Washington and Jefferson County, Kentucky. By a 5-4 vote the Court struck down desegregation plans in both of these school districts because the plans were based purely on racial percentages and were not related to either of the two acceptable justifications for affirmative action, i.e., to remedy past racial injustices or to provide the benefits of a racially diverse student body. The Supreme Court has legitimized these two justifications for affirmative action, and the Court has stated that if a desegregation plan is narrowly tailored to accomplish one of these objectives, then the demands of the Fourteenth Amendment’s Due Process Clause are satisfied. But neither the Washington nor the Kentucky plans even attempted to articulate such a connection with its racial percentage plans. Accordingly, the plans failed to survive the strict scrutiny that the Equal Protection Clause demands of any racially-driven, governmental plan.

This decision once again pitted the five more conservative Justices with the four more liberal Justices. But this ruling is likely to evoke more criticism and commentary than the other rulings announced this week for several reasons. This is primarily so because it pertains to race, and there are a number of outspoken leaders in the nation who do not hesitate to speak out against racism whenever they can, whether or not the particular facts justify such an allegation. The dissenting Justices implicitly called for such criticism in their long and emotional argument against the majority’s opinions. But for all the protestations of the dissenters, Chief Justice Roberts and the majority correctly applied the law, and properly rejected the desegregation plans. If the dissenters’ opinion had been in the majority, this case would have stood for a significant extension and expansion of the types of racially-motivated, affirmative action plans that the Court has chosen to permit under the Equal Protection Clause. The Roberts Court wisely drew a line in the sand and took a stand against further expansion.

It should be pointed out that the Parents Involved opinions are 185 pages in length. Few people will take the time to read them, let alone to understand them. I expect that the discussion of this case will be limited primarily to name-calling and superficial treatment. The Majority will be labeled as “racists” and the dissenters will be hailed as the heroes of the down-trodden. Neither is true. The plain language of the Equal Protection Clause and the clear language of the earlier cases on affirmative action all support the ruling of the Court on this important issue.

The pages of opinions generated by the Justices in addressing this case was multiplied because of the acerbic dissent of Justice Breyer, who spent numerous pages giving his account of historical events and stating his sociological arguments for upholding the Seattle and Jefferson County plans. Justice Thomas’ concurring opinion devoted 36 pages to respond to Justice Breyer’s argument. The Chief Justice’s (the Majority) opinion, devoted thirteen pages to respond. But the Majority was not side-tracked; they got it right.

National Association of Home Builders v. Defenders of Wildlife

On June 25, 2007, the Supreme Court, in another 5-4 decision, resolved a procedural conflict between to federal agencies pertaining to the protection of endangered species, the result of which is to lessen the protection given to endangered species.

The legal question around which this case centered is whether the Environmental Protection Agency (EPA)is required to consider whether a construction project would jeopardize an endangered species before transferring permitting authority to a state (Arizona). The Supreme Court answered this in the negative; they said that the Clean Water Act of 1972 requires that the EPA transfer permitting responsibility for a project to the applicable state once nine criteria are satisfied. And that is what the EPA did. Thereupon, Defenders of Wildlife filed suit directly in U. S. Court of Appeals for the Ninth Circuit, requesting the court to order the EPA to first insure that a water project would not endanger the cactus ferruginous pygmy-owl and the Pima pineapple cactus. The Ninth Circuit ruled in favor of the petitioners (Defenders of Wildlife). However, the Supreme Court reversed, ruling that the EPA had correctly transferred permitting authority.

Having given this brief description of the case, you might ask, “So what?” What makes this case important? The answer is that this ruling is a setback to those who have sought to place protection of endangered species as a higher priority than the primary purposes of other federal agencies and programs. The four dissenting Justices (Stevens, Souter, Ginsberg and Breyer) argued that the majority's interpretation of the Clean Water Act reverses a long-standing mandate that Congress must make protection of endangered species a priority over the “primary missions” of other federal agencies.

(J. Stevens, dissent, p. 2). But the opinion of Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas) disagrees.

This case was necessary because of a difference in the Circuit Courts in addressing this procedural issue. It is not clear to me that the decision will necessarily be more or less protective of endangered species. I believe it will relegate to states more of the enforcement of endangered species protection; perhaps this will yield some inconsistent interpretations of law. But I favor this deference to the States; it should mean that decisions regarding the protection of endangered species will be made by the people closest to the situation, and therefore perhaps more sensitive the the affects and influences of such issues. It certainly divests the federal government of some control over protection of endangered species.

Morse v. Frederick

On June 25, 2007, the Supreme Court ruled in Morse v. Frederick, 551 U.S. ____ (2007) that Deborah Morse, a high school principal in Alaska, did not violate the free speech rights of one of her students, Joseph Frederick, when she confiscated a 14-foot banner that Frederick displayed at a school event, which banner bore the phrase, “BONG HiTS 4 JESUS,” and when she suspended Frederick for not complying with her directive to take the banner down.

This case was another 5-4 ruling, with newly appointed Justices Roberts and Alito on the side of the majority.

The key fact in this case is WHERE the speech event occurred. In most places and circumstances, such speech is fully protected by the First Amendment. But certain limitations kick-in when it occurs as a part of a school event.

The dissenting Justices (Stevens, Souter, Ginsberg and Breyer) complain that the suspension of Frederick was unfair; that the displaying of the banner was not disruptive; that the phrase did not encourage the use of drugs; and that Frederick had no intent to promote the use of drugs—that he was just trying to get attention. But the unique situation of the public school setting justifies the actions taken by Principal Morse in this case. The majority got it right.

The situation would be different if the student were disciplined for something he had said in an in-class discussion about drugs or politics or some other relevant issue. But when a student seeks to use a school forum to make his own speech, for his own purposes, his speech rights are limited because he has no right disrupt the school program or to use the other students to advance his agenda. And “disruption” should be broadly defined, and the school authorities should be given discretion to make the spur-of-the-moment judgments that they feel are best for the school. And their discretion should not be subject to review unless it is clearly erroneous.

While I, for one, disapprove of some of the public school curriculum that my children are and have been subjected to, nevertheless, the greatest problem facing our public schools today is the lack of discipline of the students and the lack of control that teachers have over their students. The increased freedom of students has led to significant increases in disrespect in classrooms; and this has in turn had a serious, deleterious effect on our public education system. If the school system must subject itself to recognize and showcase every student who decides to exercise his freedom of speech rights, this would lead to chaos. The Supreme Court’s ruling in Morse v. Frederick is a step in the right direction, to help the schools regain control so that the education environment can be better for all students.

Now, having shared my social commentary on Morse v. Frederick, let me say a little bit about the legal issues involved. The guiding case with respect to this school speech issue is Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). In that case the Supreme Court allowed students to wear black arm bands in protest of the Vietnam War. The Court ruled that unless the speech [the wearing of the armbands] would “materially and substantially disrupt the work and discipline of the school,” then the conduct was protected under the First Amendment. In that case the students’ conduct prevailed over the school administrators. But in the case of the “BONG HiTS 4 JESUS” banner, the principal said that the banner was taken down because she thought that it promoted illegal drug use. The student denied that this was his intent, and a close analysis of the wording yields uncertainty about what the phrase means. But the majority of the Supreme Court held (and correctly, in my opinion) that the principal’s “on the spot” action to confiscate the banner was a “reasonable” action for her to take in controlling student expressions that could contribute to dangerous conduct (Roberts, C.J., slip opinion, at p. 15).

It was important that this case be decided in favor of the school administrator for one, big reason: The school should not be made a stage for national debate on current social/political issues. A student should not be empowered to take over the education system at will by asserting a constitutional right at any time he chooses. To allow a student to assert a constitutional right at any time he/she chooses would be to sew the seeds of disruption in the school. In fact, this disruptive effect has already been in operation for over 30 years. It has contributed to a decline I the discipline and respect of students and to an increase in the widespread disrespect that now plagues public schools.

Hein v. Freedom From Religion Foundation, Inc.

On June 25, 2007, the Supreme Court ruled 5-4 in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. ____ (2007) that being a taxpayer is not enough to give an individual standing to bring a suit to challenge the Executive Branch's using faith-based programs for delivering social services as a violation of the First Amendment's Establishment Clause.

This ruling is important because it blocks law suits that challenges the government's accommodation of religion, including acknowledging religion and on occasion even working with religion in addressing social needs. The Hein ruling means that anti-religion zealots have no right to bring a law suit to challenge the work of the Executive Branch for involvement with religious organizations merely because this may hurt their feelings. The Hein ruling dictates that in order to have standing to challenge such Executive Branch action, the complaining party must show that it has suffered “injury in fact,” not just “psychic injury.”

The name of the complaining party indicates exactly what this law suit was all about. The complainant wants to eradicate all vestiges of religion from government. They are upset with the nation's long, constitutional tradition of accommodation of religion; they are madder still at the national motto, “In God We Trust” and at the statement in the pledge of allegiance that we are a nation “under God.” They cringe every time a President says, “God bless America.” Their stated goal is to change all of this. They wish to convert the meaning of the Establishment Clause of the First Amendment from a shield to a sword; they wish to change freedom of religion to freedom from religion.

The Hein ruling is an important defeat for the anti-religionists.

However, a review of the Hein ruling is interesting and important for some other reasons, too. Like the Court's ruling on the same day in FEC v. Wisconsin Right to Life, a majority of five conservative justices came to the same conclusion, but based upon different rationales. In fact, in both of these cases, the rationales of Justices Scalia and Thomas were in some respects closer to that of the dissenting Justices (Stevens, Souter, Ginsberg and Breyer), in that these six felt that the distinctions made by Chief Justice Roberts and Justice Alito were not logically sustainable—that there was no basis for limiting the application of Flast to Congressional acts but not to Executive acts. But in both cases, Justices Scalia and Thomas voted with the Chief Justice and Justice Alito because the former felt that the Court should overturn an erroneously decided case rather than to try to carve out an exception to the cases. I find this to be intellectually intriguing.

In Hein, discussion centers on the case of Flast v. Cohen, 392 U.S. 83 (1968), in which the Supreme Court ruled that a mere taxpayer had standing to challenge in court the government's using funds allocated by Congress under the Elementary and Secondary Education Act of 1965 to support parochial schools. (J. Scalia's concurring opinion, p. 5.) But the Court in Hein distinguished Flast by pointing out that Flast dealt with a Congressional act whereas the expenditure in Hein was a discretionary expenditure of the Executive Branch. Justices Scalia and Thomas agreed with the Chief Justice and Justices Kennedy and Alito as to the result—they just felt that Flast was wrong in the first place, and that it should be overturned.

I am with Justices Scalia and Thomas on this case. The “psychic injury” test for standing is bad policy. The Flast case continues to recognize and endorse this ephemeral standard. To illustrate the application of the “psychic injury” look at some litigation that took place in my town, Frederick, Maryland just a few years ago. An eighteen-year-old student filed suit to remove a Ten Commandments monument from the City's war veterans' memorial park. In order for this young man to state a valid cause of action he first had to declare that be seeing the Ten Commandments monument in the park that this caused him emotional pain and grief. For if the young man would not say that the monument bothered him, then he would not be able to challenge the constitutionality of the City's harboring of the Ten Commandments monument. The young plaintiff contacted the ACLU to get the legal direction he needed, then he claimed that the monument disturbed him, and then—because of the Flast case—he got standing to suit the City in court.

The Flast case has served to open the flood gates to a host of litigation aimed at making people feel good, rather than addressing claims for actual injuries in fact. The nation has become obsessed with addressing touchy, feely mental and emotional matters. The penchant for hate crime laws is another manifestation of this same trend. It is not enough to punish a criminal for his wrongful acts of violence, but we have enacted laws to give increased punishment if we can prove that the criminal harbored certain, specified bad intents at the time. This exercise is unnecessary; it is the product of legislators have too much spare time on their hands; it costs more tax monies to administer; and it causes all parties more money to implement.

Justices Scalia and Thomas were right to call for Flast to be overturned. They were unsuccessful in this, but at least the conservative block was successful in limiting the bad effects of Flast.

FEC vs. Wisconsin Right to Life

On June 25, 2007, the Supreme Court ruled 5-4 that the Federal Election Commission (FEC) erred in baring the Wisconsin Right To Life (WRTL) organization from broadcasting three issue ads during the 2004 election campaign. The three ads had addressed the concern of the WRTL to stop the Senate filibustering of the appointment of federal judges. The FEC had ruled that these ads were the functional equivalent of express advocacy because they implicated Senator Feingold, who was supportive of the filibusters and who was running for re-election. The U. S. District Court for the District of Columbia found in favor of WRTL, and overturned the ruling of the FEC; the court ruled that the three ads were not “express advocacy” ads and were not the “functional equivalent” of express advocacy. The Supreme Court affirmed the ruling of the District Court.

This is an important ruling because it effectively overturns part of the McCain-Feingold, Bipartisan Campaign Reform Act of 2002 (BCRA). Just three years ago, the Supreme Court ruled (5-4) in McConnell v. Federal Election Commission, 540 U.S. 93 that the BCRA was constitutional. For those who have followed this issue for some time, you may recall that after its passage in Congress, there was considerable disappointment among conservatives that President Bush did not veto the bill. Some thought that the President may have been counting on the Supreme Court to invalidate the law. This writer, for one, had predicted that the Court would find the BCRA to be an unconstitutional limitation on speech that is protected under the First Amendment. But, by the narrowest of margins (5-4) the Supreme Court upheld the BCRA.

The issue that was before the Court in FEC v. WRTL addressed one aspect of BCRA—issue ads that are aired by corporations during the blackout period, 30 days before a primary and 60 days before a general election. The WRTL wanted to run their three issue ads during the regulated period even though they acknowledged that the BCRA prohibited their broadcast. The WRTL argued that the issue ads were protected speech that must be permitted regardless of the prohibiting language of the BCRA. The Supreme Court agreed.

This case is so significant because it is very difficult to distinguish between issue ads (which are not barred by the BCRA) and express advocacy ads for or against specific candidates for election (which are barred by the BCRA). The difficulty to distinguish the two is demonstrated in the WRTL case. While the wording of the ad addressed an issue and did not directly encourage voters to vote for or against any candidate, the effect of the ad was to criticize Senator Feingold for supporting a filibuster of a Senate vote on the President's judicial nominees. Thus, the effect of the WRTL ads was to indirectly criticize a candidate. But five of the Justices upheld the right of WRTL to broadcast its issue ads regardless of whether the effect might be to help or hurt a particular candidate.

But the Court was not unified in the reasoning for this ruling, and that makes the case even more intriguing. Chief Justice Roberts and Justice Alito reasoned that the McConnell ruling of three years ago had preserved for corporate speakers a right to broadcast issue ads during the blackout period so long as they were not “express advocacy” or the “functional equivalent” of express advocacy. Then, Justice Roberts reasoned that an issue ad should not be deemed the functional equivalent of express advocacy unless the ad “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” This, of course, is an extremely broad test that would protect almost all issue ads from being found to “express advocacy.” This, broad standard, that would immunize most issue ads from the reach of the BCRA is so protective of issue ads that all seven of the other Justices argued that it would effectively overturn the McConnell case. That's where Justices Scalia, Kennedy and Thomas come in; they wanted to specifically overturn that portion of the McConnell case; and for that reason they joined in a concurring opinion (authored by Justice Scalia) that ruled in favor of WRTL, but they would invalidate part of the McConnell ruling. This left the remaining four Justices complaining in their dissent (by Justice Souter) that the Court had erred by effectively overturning a major part of the McConnell case by invalidating Section 203 of the BCRA.

Where does that leave us as the 2008 Presidential Campaign is fast upon us? The BCRA remains good law, but the ruling in FEC v. WRTL effectively guts it with respect to corporate issue ads. Personally, I prefer Justice Scalia's reasoning, but the reasoning of Chief Justice Roberts is not bad either. And that's what you get with a plurality decision—more than one rationale in support of a specific ruling. In any event, this ruling is an important victory for fundamental freedom of speech rights.