5-4, 5-4, 5-4, 5-4
Can you spell fracture? Four Supreme Court decisions released on Monday. Four 5-4 decisions, all by the same line-up: Roberts, Scalia, Thomas, Alito and Kennedy in the majorities, Stevens, Souter, Ginsburg and Breyer in the minority. Here’s where Bush’s 28 percent approval is meaningless: the same sort of 5-4 majority that made him president will now make his legacy. It’s the continuation of America’s undoing.
In Morse v. Frederick, the Alaska high school student who brandished a “BONG HITS FOR JESUS” sign during an Olympic parade, outside the school, lost his free-speech bid. Chief Justice John Roberts, taking that one on himself, ruled the principal had every right to walk across the street and tear up Frederick’s banner because the event happened during school hours. (Breyer actually concurred in part and dissented in part; Breyer has always had a pro-police-state streak in him, stemming maybe from the fact that his brother is a federal prosecutor in California.) I wrote about this case here and here.
In FEC v. Wisconsin Right to Life, a provision of the Feingold campaign-finance law that restricted or banned “issue ads” from airing within weeks of an election was ruled unconstitutional. The decision, AP writes, “could lead to a bigger role for corporations, unions and other interest groups in the 2008 presidential and congressional elections.” (Instinctively, I can’t say I disagree, but how could the very same five justices have ruled as they did in this case while ruling against Frederick in the Alaska case? It’s not about justice, but politics.)
In Hein v. Freedom from Religion Foundation, the same five justices ruled that Freedom From Religion Foundation had no standing to bring a suit against the president’s Office of Faith Base Initiatives (the suit charged that the office copiously broke the church-state wall). Samuel Alito delivered that opinion, bending over backward to justify the unjustifiable: a White House essentially championing the use of tax dollars on religious purposes; and taxpayers locked out of suing over that kind of spending, because, in Alito’s view, it’s nonsense to claim taxpayer injury from the kind of spending involved. Nice way to evade the question and forget James Madison’s admonition that the government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment of religion.”
And finally, in National Association of Homebuilders v. Defenders of Wildlife, the five horsemen of the apocalypse took the side of business, of course, against environmentalists and endangered species. Alito, the AP reports, “said the endangered species law takes a back seat to the clean water law when it comes to the EPA handing authority to a state to issue water pollution permits. Developers often need such permits before they can begin building.” The ruling reverses a lower court’s opinion that the EPA hadn’t done enough “to ensure that endangered species would not be harmed if the state took over the permitting.”
Forget precedent. Forget protecting taxpayers. Forget, even, John Roberts’s ambition to be a new John Marshall, whose chief justiceship was defined by consensus. Roberts is one of the craftiest, most deceptive justices we’ve known in the last couple of generations. He came across during his hearings as a sort of gentle, pragmatic conservative. As usual, most media took him at his word, mistaking his performance on camera for his substance. He is, in fact, more conservative than the previous chief justice. His social conservatism may not be as pronounced. His business conservatism is as fat as Chief Justice Taft’s. Back in the January/February issue of the Atlantic, Roberts boasted to Jeffrey Rosen that he wanted to be like Marshall: “In Roberts’s view,” Rosen wrote, “the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.”
Someone should wave that quote in his face today.