A Supreme Court Conversation
Dear Dahlia,
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StumbleUponOne last observation suggested by the opinions in Hein. Once you have five justices in so much agreement as the Conservative Five have been this term, you think there will be no real debates among them. But no matter how much agreement there is among a group of five justices, divisions will always emerge. The end-of-term conflict among the majority this year is not over what the right rule should be, or even about whether to abandon the prior, less conservative, decision—it is over precisely how to go about overruling prior cases. That is a pretty refined division.
Chief Justice Roberts and Justice Alito—perhaps recalling their recent confirmation encomiums to stare decisis—have apparently decided to overrule cases without saying they are overruling them. Justices Scalia and Thomas often won't go along with that move and thus write separately to say that the earlier cases should be explicitly repudiated. Justice Kennedy has gone both ways this week. The result is that the five justices in the majority break into two opinions, one of which would explicitly overrule a prior case and the other of which would leave it half-dead and unable to procreate. Scalia and Thomas would come clean and invoke the magic phrase "X is hereby overruled" while Roberts and Alito avoid the O word and say things like, "We leave Flast where we found it."
We saw this pattern in Hein (Scalia and Thomas to overrule; Roberts, Alito, and Kennedy to leave barely breathing); FEC v. Wisconsin Right to Life (Scalia, Thomas and Kennedy to overrule; Roberts and Alito to abandon in a ditch). So, who has the better of this argument over how to bail out on prior law? "Minimalism" cautions that the prior case should be left standing when it is possible to distinguish the new case. Do no more than necessary is the way of restraint. But it's neither minimalist nor restrained to overrule cases while pretending you are not. There can also be a significant cost to the coherence of the system to have a precedent that is really indistinguishable in principle from new cases that go "the other way." What are lower-court judges to do when the earlier case is cited? How are they supposed to reconcile the conflicting results? I think on balance that Scalia has the better of this argument with Roberts and Alito. Taking after their decision to avoid saying that Hein overrules Flast, Scalia effectively flays what he calls Alito and Roberts' "impulse to take a minimalist approach." Scalia writes convincingly:
But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, yet somehow technically alive.
(Sentences like that make me think that the world would be a better place if Justice Scalia stepped down from the court and started writing for Slate—we would have all the benefit of his humor and insight, but his vote wouldn't count as the law of the land. Better all around.) Here Scalia is right—the whole point of adherence to stare decisis is to create stability and predictability in the law and to avoid having the outcome of cases differ simply because of a change in the composition of the court. It's not about magic words.
Just as I was about to send this off, I saw a new posting on National Review Online that has both good news and bad. Ramesh Ponnuru is warmly complimentary about our last posting, but conveys the shocking information that I got the date of Marbury v. Madison wrong. It is of, course, 1803. I wrote 1804 and hit the send button. This may seem a minor matter to you. But Marbury is the holy grail of constitutional law. For one who has taught constitutional law for more than three decades, this is a catastrophic, monumental error. It's like a sportscaster writing about the "Five Horsemen of Notre Dame." Ritual disembowelment has to be considered as an option. If you don't hear from me tomorrow, ask them to scatter my ashes in John Marshall's cemetery.
Chastened,
Walter
P.S. As to your last question: Let me think on it overnight and get back to you on this tricky question of what Brown v. Board meant to those of us who are not Canadian.
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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
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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.)
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