Monday, June 25, 2007


The Post explains the Supreme Court

I haven’t read the decisions announced today by the Court but I guess I have to now. I tried reading Robert Barnes “analysis” and Andrew Cohen’s Bench Conference blog (both online at, but their insights went little beyond labeling the decisions (well, some of them) as victories for conservatives (and this being the Washington Post, you know that ain’t good). Mr. Cohen is especially worked up over the results:

“Legal and political conservatives hit for the cycle Monday morning when they "won" four long-awaited rulings from the United States Supreme Court….

“Each of these decisions help establish the true conservative bona fides of this Court.”

Mr. Barnes is also with this line of reasoning as he apparently toes the party line that there are 5 conservatives judges therefore decisions with them in the majority are conservative decisions:

“The conservative opinions, with the exception of the abortion ruling, have been, for the most part, low-key in tone and shaped by what the authors said was a strict reading of congressional statutes.”

(Ed. Note: The Barnes piece was labeled “Analysis” – how about calling out the Justices if you don’t agree that they employed “a strict reading of congressional statutes”.)

Not explained by either of the gentlemen is how a decision ostensibly limiting free speech (the infamous “Bong Hits 4 Jesus” case) and one ostensibly expanding free speech (or at least getting us closer back to where we used to be) (FEC v. Wisconsin Right-to-Life) are both conservative decisions.

Especially snarky is Mr. Cohen’s quick synopsis of 4 of the decisions handed down today:

“The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school.”

Well, all the Justices did to chip away at the imaginary wall was to deny standing to a group suing the White House Office of Faith-Based and Community Initiatives. And the neutering of federal regulators case involved an outside group (Defenders of Wildlife) trying to get a federal regulator’s decision overturned. I’ll leave it to you to decide whether a federal regulator whose administrative decision is allowed to stand is somehow more neutered than if the Court allowed to stand a lower court ruling which had imposed its own ruling after disagreeing with the original administrative decision.

Left out of all this wailing and gnashing of teeth is the FIFTH decision handed down today – a 7-2 decision disallowing a suit against Federal officials for perceived retribution when the landowner did not allow federal use of his land (Wilkie v. Robbins). Mr. Barnes at least mentions that there were 5 decisions today; Mr. Cohen couldn’t be bothered for even that much. I’m guessing he already had the perfect slant for his gleeful harangue about conservatives going 4-4 today at the Supreme Court. A decision easily cast as anti-property rights wouldn’t have fit the script.

The wall of separation of church and state is not, I would submit, imaginary. It may be a wise conclusion or a foolish one from the text of the Constitution, but it is about as imaginary as "separation of powers" which phrase does not appear in the U.S. Constitution either (though in the Maryland Constitution it does appear.)

Even if one disagrees with the jurisprudential point, one can certainly foresee that the Faith-Based Initiatives of President Bush will have a very different flavor under a possible President H.R. Clinton. Is your priest Hillary-approved? I suspect a few "St. Thomas More" moments early in Clinton's first term will improve the popularity of the wall of separation as a policy matter if not a jurisprudential one among conservatives.

That said, I reluctantly applaud the Hein decision for a bad reason. The bad reason is that Dan Barker and Annie Laurie Gaylor of the Freedom from Religion Foundation are smug on their radio/podcast show to the point that I can barely listen to them. They have good guests, so I enjoy the guests. When Dan Barker starts playing his cute, childish-sounding guitar riffs and condescending pro-atheist music lyrics, it makes even me want to write Pat Robertson a $5 check out of sheer desire to punish Barker.

So I will hear them whine this week, rather than intone smugly. I am looking forward to it.
I reference an imaginary wall because I believe it has become emblematic of the outright hostility certain elements have for religous affiliated individuals and entities(...except of course for Al Sharpton, Robert Drinan and Black Churches on Sunday during election years). The constitution merely proscribes "establishment" which certain Justices and judges, striving to be a must-read in our law schools have developed into a full-blown antipathy towards any kind of contact between government and religion. So I consider it imaginary in that no one who signed onto the constitution would recognize such a draconian take on this clause.

I'm not crazy about the faith-based initiative because I'm not happy with federal involvement in those areas but it is ludicrous to make such social programs a federal concern and then proclaim that only a secular approach can/will work.

And honestly, had the suit gone forward, what realistic constraints would there have been on any taxpayer to sue in fedreal court? Come a Mrs. Clinton administration and I would have relished the opportunity to garner fedral court experience...and be a the same time.
Friday's Post had an analysis calling the court pro-business. (As if that were bad.) But when you get past the headline, the article acknowledges that the liberal judges (IIRC Breyer was mentioned by name in one case) were just as likely to support those pro-business decisions as the conservative judges. In fact what the article pointed out is that the what's new with the Roberts court is the number of business related cases that the court now hears.
good point about hearing the cases because letting stand - without cert - a lower court ruling (esp. the 9th) is often just another unsigned opinion in itself
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