A Supreme Court Conversation
Dearest Walter,
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StumbleUponOh please consider forgoing the disembowelment. If a typo is the worst mistake you have made in six years at Slate, you are in far better shape than the rest of us. And for what it's worth, I have no notion of the correct number of Horsemen Notre Dame ought to have, although I'll warrant symmetry would argue for four or 10.
I know we'd planned to talk a bit about Brown today, and I am really looking forward to hearing your thoughts. But I wonder if we can also pan way back for just a moment before we dig into the two schools cases that will come down tomorrow. There is a strain running through the liberal commentary about the Roberts Court that is troubling to me, and I wanted to hear your thoughts on it. When we first started this dialogue, I suggested that court watchers are in agreement that the Roberts Court is polarized and ideological that it's never been clearer in my own lifetime that who sits on the court matters more than what "the law" says. But what's started creeping into others' analyses along these lines is that what's changed most about the high court is that the Roberts Five are just plain "mean."
I love to read Robyn Blumner, but her new column on the black, black hearts of the court's five conservatives is amazing in that it both goes that far yet voices a sentiment that many others have expressed to me in recent months: "The addition of Chief Justice John Roberts and Justice Samuel Alito to the heartless duo of Justices Antonin Scalia and Clarence Thomas has cemented a plurality for cruelty. If there's a choice between casting a lot for the little guy, tipping a case toward compassion or putting a foot on his throat, it's a safe bet that these four will be getting out their jackboots." The St. Petersburg Times similarly describes the recent ruling in Bowles (the appeal of the Ohio inmate who missed a filing deadline because he followed the erroneous orders of his judge) as "heartless." Bill Scher derides the Roberts Court's elitist and unresponsive agenda, poised to impose "one group's version of morality" upon the country.
I think you and I agree that name-calling and hyperbole are not the best way for us to talk about law and policy. (Although hats off to Elizabeth Edwards for being willing to take on such garbage on the merits.) But it seems to me that what's undergirding this liberal outrage—over the breakneck speed with which the Roberts Court has sought to slam the courthouse door on criminal defendants, workers, women, environmental groups, students—lies a deep frustration. We somehow saw this "mean court" coming and did nothing, because we didn't know quite what to do. So Andrew Cohen blames the mainstream media for being "pathetic" during the confirmation hearings. And Linda Greenhouse recently observed that the senators' relentless focus on "stare decisis" and "super-duper precedents" during those confirmation hearings was basically pointless. But while conservatives are crowing this week over what's gone so right on the Roberts Court, very few liberal critics have come up with suggestions of how it could have been prevented.
Now maybe the Roberts Five really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
You made an interesting point this week to this end when you wrote that without Sandra Day O'Connor anchoring the court, it's quickly become more "doctrinal" and that there "seems to be no one on the court to offer some pragmatic resolution to difficult, contentious issues." So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.
Maybe this is all too big a question to resolve in a clutch of e-mails, but I do believe that it's long past time for liberals to engage in a very serious conversation about what we believe has gone wrong with this Roberts Court, and what qualities—beyond niceness—we want our next justices to have.
Yours in frustration,
Dahlia
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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.)
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