Andrew Cohen sounds particularly bitter today in describing the rulings issued by the Supreme Court today.
Legal and political conservatives hit for the cycle Monday morning when they "won" four long-awaited rulings from the United States Supreme Court. 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.
Well, that's not exactly accurate, but who's to blame Cohen when the Justices aren't deciding his way? SCOTUS blog has a more measured description of the cases. The decisions were as follows:
In the first of several rulings on the merits, the Court split 5-4 in deciding that a federal agency that is required by law to take a specific action under one federal law does not have to follow the conflicting mandate of the Endangered Species Act. The decision, written by Justice Samuel A. Alito, Jr., came in National Association of Home Builders v. Defenders of Wildlife (06-340) and a companion case.
In the second decision of the day, also written by Alito and again dividing the Court 5-4, the Justices ruled that taxpayers do not have standing to sue to challenge the White House program on federal aid to faith-based organizations. The Court did not overrule Flast v. Cohen, as two Justices in the majority urged it to do so. The case was Hein v. Freedom from Religion Foundation (06-157).
The third decision, written by Justice David H. Souter, found over two Justices' partial dissents that government employees carrying out their official duties and not for personal benefit are not subject to damage claims against them personally based on a lawsuit asserting that they violated the RICO anti-racketeering law or private property rights. The decision came in Wilkie v. Robbins (06-219).
The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message. The ruling in Morse v. Frederick (06-278) also should count as a 5-4 decision because Justice Stephen G. Breyer would have decided the case on qualified immunity grounds, and not reach the First Amendment issue.
The Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority in four of the five rulings on Monday. The ruling came in Federal Election Commission v. Wisconsin Right to Life (06-969) and a companion case.
The key cases on the day were the "Bong Hits 4 Jesus" case, in which a student was disciplined for unfurling his banner at a school-sponsored event (the court said it was not a violation of the student's speech) and the Wisconsin Right to Life case, where an organization tried to run ads encouraging Wisconsin senators to approve President Bush's court nominees within the 60-day window before an election. The court decided that the organization should have been allowed to do so.
Expect lots of screeching from the Left over the next few days, weeks, and months about the "sharp turn to the Right" by the Supreme Court. This is nonsense, of course. It's true the court is more conservative with Chief Justice Roberts and Justice Alito than it was with Justice O'Connor on the Court, but there has been, by no means, a "sharp turn" in any direction.
There was no unanimity among the five-member majorities in any of the above cases. As for President Bush's promise to nominate justices like Clarence Thomas and Antonin Scalia, neither Roberts nor Alito show any hint that they agree with the most conservative justices. Indeed, where Thomas discusses chucking Tinker v. Des Moines, which stated that students and teachers have First Amendment rights "subject to application in light of the special characteristics of the school environment," no one else went so far.
So, basically what you have is a somewhat more conservative court but not what I would call a truly conservative court. Justice Anthony Kennedy is more conservative than O'Connor was, but that's not saying a whole lot.
UPDATE: Eugene Volokh ponders the weaknesses in Alito's logic in the Bong Hits 4 Jesus case.
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