A Supreme Court Conversation

Scalia Melts Off Your Arm Hairs
An email conversation about the news of the day.
June 26 2007 1:32 PM

A Supreme Court Conversation


Dear Walter,

I guess we are going to have to agree to disagree on campaign-finance reform. To my thinking, Justice David Souter has the better of it in his FEC dissent, which he read from the bench yesterday. What big corporate and union money is doing to election campaigns, and consequently to public confidence in the electoral system, is staggering. As he puts it, it's a problem Congress has been wrestling with for more than a century, in an effort to undo the "pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions." The chief justice's new model—don't see sham issue ads for what they clearly are, but closely scrutinize student speech for what it's clearly not—reveals a profound failure of understanding at both ends of the speech spectrum.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.


Souter ends his opinion with a call to Congress to do something. This is shades of Justice Ruth Bader Ginsburg's recent dissent in Ledbetter, the case that dramatically circumscribed the time frame in which a plaintiff could file a sex discrimination suit. Writes Souter, "The facts are too powerful to be ignored, and further efforts at campaign reform will come."

One additional thought. It seems that when we have these clunky plurality opinions—in Morse, Hein, and FEC—we are right back in the fix everyone used to blame squarely on Sandra Day O'Connor. Which is to say, um, what is the clear ruling of Morse? What is the precise holding in Hein?  I can't quite figure out what some of these plurality opinions are doing. Is a student T-shirt that says, "Man. I would be soooo high right now if they legalized marijuana" protected speech or not after yesterday? Remember when that sort of good-for-one-ride-only confusion used to be all O'Connor's fault? Recall that Alito and Roberts were going to bring crisp clarity back to the legal landscape?

So, now we turn to Hein. This is the case about President Bush's Faith-Based and Community Initiatives Program, a program that attempted to tear down the wall between the provision of social services and the religious groups who might wish to provide them. The president funded speeches and conferences—described by some as "revival meetings," and an atheist group called the Freedom From Religion Foundation sued, claiming this was government impermissibly "establishing" religion. The question for the Supreme Court to decide was about "standing"—whether the mere fact of being a taxpayer would be enough to get the plaintiffs through the courthouse door.

The answer would be a flat no, because taxpayers generally don't have standing to challenge government actions, but for the 39-year-old case Flast v. Cohen, which carved out an exception to that rule for taxpayers suing to challenge government spending on religious programs. Now before you tell me how terrible Flast was, let's note that Justice Alito in his majority opinion clubbed it senseless but did not overturn it, using the evocative drive-by language: "We leave Flast as we found it."

Justice Scalia, with Justice Thomas concurring, pens a dissent to melt off your arm hairs. Flast should be overruled, he urges, and he then excoriates the majority for what seems to be its core holding: that Flast applies only to government expenditures that are expressly authorized by Congress, as opposed to the executive branch. Scalia derides Roberts, Alito, and Kennedy's refusal to overturn Flast as purely for show; "an impediment to the plurality's pose of minimalism." Later he writes that "minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions in the future."

Remind me again which side of this case he's on?

Justice Souter need barely put an oar in the water after Scalia's efforts. He merely notes in his dissent that for some ill-defined and incomprehensible reason "the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury." He is baffled that Alito has devised some sort of magical separation-of-powers rationale  that renders spending decisions by the president less worthy of judicial review than those decisions made by Congress. As he puts it, "If the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away."

And what Souter need not add to this analysis—after all, it's been shouted from the front page of the Washington Post all week—is that now more than ever we should understand why shielding executive branch actions from court scrutiny, merely because they happen to emanate from the executive branch, is a pretty damn horrifying idea. That's assuming we can even identify anymore what the words executive branch might mean.




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