Courting disaster

Updated A string of recent rulings by the Supreme Court has revealed the clear existence of the long-expected "conservative" majority. I put "conservative" in quotes for reasons which will become apparent later. But first, the rulings.

The Supreme Court liberated corporate and union political spending, limited students' speech and shielded the White House faith-based program from legal challenge Monday in 5-4 rulings that pointed up the court's shift to the right. ...

Five justices - [John] Roberts, [Samuel] Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas - formed the majority in each decision. The court's four liberals, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, dissented each time.

The campaign finance ruling rejected a provision of the McCain-Feingold law that barred interest groups from running radio or TV ads that mention a candidate's name within 30 days of a primary or 60 days of a general election. The decision, which essentially overturned a 2003 Supreme Court decision upholding McCain-Feingold, was declared by the majority to be a matter of free speech.

"Where the First Amendment is implicated, the tie goes to the speaker, not the censor," Roberts said.

A noble sentiment - which got tossed out the window in the case of Juneau, Alaska, high school student John Frederick, who in 2002 displayed a banner reading "Bong Hits 4 Jesus" at an event noting the passing of the Olympic torch through the city. School principal Deborah Morse claimed the banner advocated illegal drug use and suspended Frederick for 10 says, sparking a civil rights lawsuit.

Writing for the majority, Roberts said that even though the banner might have been nothing but “gibberish,” as Frederick maintained, it was still proper for Morse

to decide both that it promoted illegal drug use and that “failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use.”

So much for the tie going to the speaker.

A couple of the justices emphasized the narrowness of the ruling, saying it applied only to speech advocating drug use - or, more properly, as speech some official somewhere could interpret as advocating drug use. Leaving aside the issue of my inability to find the footnote to the First Amendment that says "does not apply to speech about drugs," Breyer, while voting with the majority to toss the lawsuit, said he was doing it on the basis of "qualified immunity." Under that principle, government officials are largely immune from suits for damages. While I doubt that was really intended to apply to a high school principal, Breyer's point was that the Fearsome Five justices didn't have to address the free speech issue at all, so even as they praised themselves for their restraint, they actually were putting a new and unnecessary restriction on the First Amendment rights of students, which apparently now extend no further than how some school official interprets how your "message" lines up with "school policy."

The First Amendment is also the home of the Constitutional basis of the principle of separation of church and state, which took a hit in the third case. There, the Court blocked a suit by a group of atheists and agnostics who objected to the White House program specifically designed to aid so-called "faith-based" programs in getting a share of federal money, a program which on its face would appear to promote religion over non-religion, which is also a Constitutional no-no.

Not any more, it seems: The Court found that ordinary taxpayers can't challenge the program. Which does leave the question of who could.

Looking at these cases, Digby declared

I'm awfully impressed with the intellectual consistency of the Roberts Court so far, how about you?

But I think that her sarcasm is misplaced. To see why, just consider one more ruling: On Monday, in another identically-divided 5-4 ruling, the Court also

limited the obligation of federal agencies under the Endangered Species Act to ensure that their actions do not jeopardize federally listed threatened or endangered species.

In two combined cases - EPA v. Defenders of Wildlife and National Association of Home Builders v. Defenders of Wildlife - the court reversed an appeals court decision that required the U.S. EPA to consider the protection of listed species before handing Clean Water Act permitting authority over to the states.

This is despite the fact that, as Carter Roberts of the World Wildlife Fund noted,

[i]n a previous ruling, the court had given the ESA "first priority" over all other federal action. ...

As Justice Stevens wrote in the dissent, the Supreme Court "offered a definitive interpretation of the Endangered Species Act nearly 30 years ago," but today "the court turns its back on our decision.... and places a great number of endangered species in jeopardy."

That is, the Supreme Court, the "oh we are so non-activist, we are so committed to precedent" Supreme Court, overturned nearly 30 years of jurisprudence regarding the ESA for the purpose of favoring developers over not only endangered species but over the very idea of the right of the public to regulate use of land as it sees fit by freeing those developers from as much regulatory restraint as the current case allowed. And it did it by, in the words of Rodger Schlickeisen of Defenders of Wildlife, "ignor[ing] the clear intention of Congress when they enacted the Endangered Species Act."

Taken together and contrary to Digby, there is a clear intellectual consistency to the decisions: All four decisions, consistently, using whatever shift in logic was required, ignoring whatever precedents may have stood in the way, spoke firmly, decisively, in favor of power, indeed of a hierarchy of power: Power of corporations over the state, of the state over the individual, of favored expressions over the disfavored. Consistent decisions in favor of the power of money, the power of arbitrary authority, the power of convention.

The courts, the very institutions of our society, of our government, that are hypothetically supposed to be places where the weak can challenge the strong on equal ground, are instead and now increasingly places to simply reaffirm the strength of the already strong. Places to endorse, to celebrate, power.

Which is why I put the word "conservative" in quotes at the top of this. This is not a "conservative" court in any classic, any reasonable, hell, any rational sense of the term. It is a reactionary one. Its ideological roots do not lie in Barry Goldwater but in George Lincoln Rockwell.

There are still dark times ahead to be survived.

Footnote: You may have noticed there is no link to the World Wildlife Fund. That's because on its home page it's promoting a new "partnership" with Coca-Cola. Since we have been boycotting Coke for over two years now, I see no reason to plug its "partners."

Updated with Another Footnote: Okay, be fair, give them this:

Putting its recent ruling on student speech into practice, the Supreme Court on Friday rejected a school district's appeal of a ruling that it violated a student's rights by censoring his anti-Bush T-shirt.

A seventh-grader from Vermont was suspended for wearing a shirt that bore images of cocaine and a martini glass - but also had messages calling President Bush a lying drunk driver who abused cocaine and marijuana, and the "chicken-hawk-in-chief" who was engaged in a "world domination tour."

Clearly, the t-shirt could not be claimed to be "advocating illegal drug use," which was the excuse used by the Court to throw down Frederick. And the Court did reject the appeal.

I still wonder about the "advocating illegal drug use" business. Is it the drug use part that's the issue, so that if the banner read "Watch TV Nude 4 Jesus" the decision would have been different? Or is it the illegal part, so that if the banner had read "Cigarette Puffs 4 Jesus" it would have been okay but had it read "Resist War Taxes 4 Jesus" it wouldn't have been? Or does it have to be both together and if so why does that narrow expression fall outside the range of protected speech if speech about drugs or about illegality isn't?