A Supreme Court Conversation
Hallo Walter, and welcome, Stuart:
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StumbleUponThe court has just handed down the last opinions of the term, and, again, all of them go 5-4. And—no surprise here—the schools cases came down as we expected, with Anthony Kennedy (sort of) joining the court's conservative bloc in finding the Seattle and Louisville voluntary student assignment plans constitutionally impermissible. The 185-page opinion is here (PDF). (And here's a big shout-out to our friends at SCOTUSblog who've come closer today than anyone could have hoped to bringing us the morning events in real time.)
I say sort of because it looks like Kennedy's pulled a bit of a Rapanos here—siding with the majority but limiting them in possibly very significant ways—but I won't know for sure until I reread his opinion.
Chief Justice John Roberts, writing for the majority, found that the school districts in question did not carry their heavy burden of showing that the "ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis." Roberts finds that the school districts have no compelling interest in remedying the effects of past discrimination because the Seattle schools had never been segregated by law, and the Kentucky schools are no longer under a court decree to desegregate. He distinguishes these cases from Grutter (PDF)—the Michigan affirmative action case from 2003—because the Michigan program was in a university context and did not focus on race alone.
Kennedy writes separately to chastise the plurality opinion for its "all too unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account." Refusing to enshrine "color-blindness" as a constitutional principle, he pins his opposition to the program on a difference between de jure and de facto segregation. Kennedy finds specific problems with both the Kentucky and Seattle systems but seems to be leaving the door open to the use of race or something like race as a factor in future remedial programs, but with some kind of inscrutable Kennedy burden that is not easily discerned and may not be possible to meet.
Am I over-reading that? Wait, I see Tom Goldstein is saying something along these lines.
The only other thing I'd flag following my first hasty reading here is Justice John Paul Stevens' brief dissenting opinion. He's been pulling out all the stops of late in relying on his own life history to illustrate how out of touch he believes this conservative majority to be. And to see the language and logic of Brown upended in service of this holding is nothing short of a "cruel irony." (Breyer uses the term "cruel distortion." So much for getting past "mean.") To that end, Stevens ends his dissent like this: "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
Maybe that kind of commentary isn't all that doctrinally relevant, but it goes to one of the central themes of the dissenters this term: Can "the law" really be so different today than it was two years ago just because the composition of the court has changed? Remember when I asked yesterday what quality seems to be so lacking in Roberts and Alito? Stevens' answer seems to be that what's lacking is something along the lines of Holmes' formulation, that "[t]he life of the law has not been logic; it has been experience."
Walter, thanks for your note this morning on what it meant to grow up in the South before Brown. It reminded me that as much as we'd like to start the clock on this whole "color-blindness" conversation in June of 2007, it actually started long before some of our smart Vulcan friends at the court were hatched.
Looking forward to all of your thoughts on this.
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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