A Supreme Court Conversation

The Conservatives Crush
An email conversation about the news of the day.
June 25 2007 3:14 PM

A Supreme Court Conversation

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Dear Dahlia,

I sometimes wonder whether you and I tend to agree too often about the Supreme Court cases we discuss on Slate. That won't be a problem today. At least two of today's really important decisions allow me to get in touch with my inner right-wing side. In its huge decision all but striking down an essential part of the campaign-finance law, and in its decision that taxpayers can't get into court to challenge the White House faith-based initiative, I think that the most "conservative" position (taken in a concurrence by Justices Scalia, Thomas, and Kennedy in the campaign-finance case, and by Scalia and Thomas in the faith-based decision) is a better approach than the slightly less robust stance taken by the new appointees, Chief Justice Roberts and Justice Alito. I think you will disagree. (You like McCain, I like McConnell, let's call the whole thing off?) But before the day is out I want to make the case that the notion of "conservative" and "liberal" makes little sense with regard to the court's fractures on these two issues.

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Today's biggest story will no doubt be that the four big cases were all decided essentially by votes of 5-4, all with the same lineup, all with victories for the five more-conservative justices and defeats for the four more-liberal justices. The departure of Justice Sandra Day O'Connor looms hugely over this final week of the term—and not just in bottom-line outcomes. Without her, the court is more doctrinal (some O'Connor critics would say more "lawful"), and the doctrinal gap between The Five and The Four seems to be growing with each new decision. There seems to be no one on the court to offer some pragmatic resolution to difficult, contentious issues.

So, let's make a plan. Why don't you tell me what you think about the two speech cases—the campaign finance case and the decision allowing a school to suspend a student who unfurled a "Bong Hits 4 Jesus" banner at a "school-sanctioned event"? I'll take a closer look at why the court holds that taxpayers who object to the White House spending on faith-based programs shouldn't have their day in court.

My favorite moment today was hearing the chief justice address the hushed assembly in the august Supreme Courtroom and solemnly intone the phrase: "Bong Hits 4 Jesus."

Write soon,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

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