George Bush got what he wanted: good conservative judges in the Supreme Court

Court Takes Sharp Right Turn in Monday Decisions

by Mike Leonard

WASHINGTON, June 25—In a series of 5 to 4 decisions, the United States Supreme Court today veered sharply to the right. The Court voted along strict ideological lines to side with the Bush administration in deciding four contentious, high-profile cases.

The four cases ran the jurisprudential gamut. They included challenges to the McCain-Feingold campaign finance law, the Endangered Species Act, and taxpayer-funded faith-based initiatives, as well as a free speech case involving an Alaskan student who waved a sign reading “Bong Hits 4 Jesus” in front of television cameras during an Olympic ceremony. In the end, the Court opened loopholes in McCain-Feingold and in the Endangered Species Act, dismissed a suit objecting to publicly-funded religious programs, and upheld the suspension of the Alaskan student.

In all four cases, the majority consisted of the same conservative bloc and the minority of the Court’s left wing. The conservative majority in all four cases included Antonin Scalia, Clarence Thomas, Anthony Kennedy and the two Bush appointees, Samuel Alito and Chief Justice John Roberts. John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer dissented.

One of the decisions is receiving particular attention due to its direct political implications. In Federal Election Commission v. Wisconsin Right to Life, the Court struck down a provision of McCain-Feingold barring television ads financed by corporations or unions from mentioning political candidates by name within 60 days of a general election or 30 days of a primary.

Writing for the majority, Chief Justice Roberts said that case-by-case consideration of an ad’s substance should override “amorphous considerations of intent and effect.” The decision went on to say that since the anti-abortion ads in question “may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate,” they failed, in the opinion of the majority, to qualify as “express advocacy,” which is legalese for an advertisement endorsing or opposing a political candidate.

“The court should give the benefit of the doubt to free speech, not censorship,” in setting the threshold for “express advocacy,” the majority wrote.

The four dissenters expressed their frustration at the reasoning of the majority, which they said has opened a gaping loophole in the ability of government to regulate campaign contributions. “After today,” they wrote, “the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”

The uncertainty introduced into standards for determining “express advocacy” could also eliminate the law’s deterrent effect, since corporations and unions may now challenge attempts at regulation on a case-by-case basis, at worst earning an ex post facto rebuke or nominal fine.

Justice Breyer, writing for the minority, warned that today’s decision might indicate the end of McCain-Feingold.

The decision represented a reversal a 2003 decision by a more ideologically balanced roster of Justices.

Critics have noted that this Court has been unusually willing to contradict recent precedent. Just last month, a divided Court upheld the Partial-Birth Abortion Ban after the Court’s previous lineup struck down a nearly identical Nebraska law as unconstitutional. Since the Supreme Court decided the presidency in 2000, there has been widespread concern among legal scholars that increasing politicization of the judicial branch could lead to a Court less concerned with interpreting the constitutionality of laws than with the short-term political ascendancy of its majority ideology.

Spurring the fear of Justices playing politics was the seemingly inconsistent line the Court took with respect to “[giving] the benefit of the doubt to free speech, not censorship.” The same majority that struck down McCain-Feingold’s blanket-proscription of corporate advertising on free speech grounds today failed to extend that courtesy to a high school student suspended for an off-campus prank.

In the most sensational of the four cases decided today, the Court sided 5 to 4 against a student suspended for unfurling a banner declaring, somewhat ambiguously, “Bong Hits 4 Jesus” as the Olympic torch passed through Juneau, Alaska in 2002. The student appealed his 10-day suspension, and the case reached the Supreme Court earlier this year.

Chief Justice Roberts, again writing for the majority, declared that “deterring drug use by children” is a compelling enough cause to circumvent the usual free-speech protections enjoyed by students.

Justice Stevens, dissenting, noted that the banner comprised “nonsense” speech “never meant to persuade anyone to do anything,” rather than a cogent pro-drug argument or a rebuttal of the school’s anti-drug policy or message. In a tongue-in-cheek allusion to the Court’s famous 1969 proclamation in favor of student speech, Justice Stevens declared that students had capable enough minds to discern a harmless prank from a propaganda message. They “do not shed their brains at the schoolhouse gate,” he said.

“Students do not shed their constitutional rights to freedom of speech…at the schoolhouse gate,” the 1969 opinion read.