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A Supreme Court Conversation

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from: Dahlia Lithwick
to: Walter Dellinger

Scalia Melts Off Your Arm Hairs

Posted Tuesday, June 26, 2007, at 1:32 PM ET

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.

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.

Yours,
Dahlia

the breakfast table
entries
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from: Dahlia Lithwick
to: Walter Dellinger

Scalia Melts Off Your Arm Hairs

Posted Tuesday, June 26, 2007, at 1:32 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor. Stuart Taylor, a New York Times reporter from 1980-88, writes for National Journal and Newsweek.
Illustration by Rob Donnelly. Photograph of Justice Antonin Scalia on Slate's home page by Alex Wong/Getty Images.
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Remarks from the Fray:

This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."

This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"

--CaLawyer

(To reply, click here.)

I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.

I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.

--SlateSurfer

(To reply, click here.)

It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.

--rrfan

(To reply, click here.)

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

--Tori_Fox-Hunter

(To reply, click here.)

The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.

So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.

The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.

--randy-khan

(To reply, click here.)

Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?

--Aagcobb

(To reply, click here.)

Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

--Dilan Esper

(To reply, click here.)

(6/26)