4 + 1

Conservatives are exulting in the Supreme Court’s move to the right, after Chief Justice John Roberts and Justice Samuel Alito came on board to reinforce the beleaguered Justices Antonin Scalia and Clarence Thomas. Liberals agree on the movement but not its desirability. Thus, the indomitable Linda Greenhouse warns readers of the New York Times of “the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so.” Frightening the semi-informed with visions of a reactionary judicial junta is good fun, and often effective — if less than admirable — politics.

But an examination of the end-of-term constitutional decisions suggests that both conservative exultation and liberal panic are, to say the least, premature. Justice Anthony Kennedy, the fifth vote that conservatives and liberals both seek, is not by any stretch of the imagination a constitutional conservative. Far from being a member of a “bloc,” Kennedy swings from side to side in the manner of Justice Sandra Day O’Connor. Not only has he been in the majority in all the five-to-four decisions this past term, many of which were liberal victories, but he has, for example, endorsed the essentials of Roe v. Wade, written opinions creating special rights for homosexuals, struck down attempts to limit pornography, increased restrictions on capital punishment, relied upon foreign law and U.N. resolutions, and openly claimed the power to control the destiny of the country.

But the news may be worse than that, for it is not yet clear how vigorous the newest members of the Court, Roberts and Alito, will be in adhering to its original principles as the only legitimate approach to the Constitution. Three end-of-term decisions raise at least occasion for speculation that Roberts and Alito may be willing to make only minor adjustments to liberal doctrines that have no basis in the Constitution. If so, they would follow in a long line of Republican appointees who turned either moderately or extremely liberal on the bench: Warren, Brennan, Blackmun, Powell, Stevens, O’Connor, Kennedy, and Souter. Others, such as Harlan and Burger, are harder to classify but did little to overturn liberal travesties of the past.

In Hein v. Freedom From Religion Foundation, Inc., the Court faced the question of what to do about Flast v. Cohen, a 1968 Warren Court decision holding that taxpayers have standing to challenge the expenditure of public funds in a manner alleged to violate the First Amendment’s prohibition of the establishment of religion. The law had long held that plaintiffs had no standing as taxpayers to challenge alleged violations of any provision of the Constitution. Flast’s exception for spending related to religion lacked any coherent rationale.

The taxpayer in Hein objected to President George W. Bush’s creation of a program to ensure that faith-based community groups can compete for federal financial support. The Court denied standing because Flast’s program was funded by a specific congressional appropriation and mandate, while the spending in Hein came out of general appropriations without a specific congressional mandate. The basis for a constitutional distinction between congressional and presidential spending is, to say the least, elusive. The plurality opinion was written by Justice Alito and joined by Chief Justice Roberts and Justice Kennedy.

Justice Scalia’s concurrence, speaking of the plurality’s “utterly meaningless distinctions,” argued that either Flast must be expanded to confer taxpayer standing whenever spending of tax revenues is alleged to violate any constitutional provision specifically limiting the taxing and spending power, or Flast should be overruled. Of the plurality’s irrational whittling of Flast, he wrote, “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.” That comment seems irrefutable.

A similar Roberts-Alito problem arose in Federal Election Commission v. Wisconsin Right to Life, Inc. Wisconsin Right to Life (WRTL) started to broadcast advertisements telling voters to contact Wisconsin senators Russ Feingold and Herb Kohl to urge them to oppose a filibuster to block federal judicial nominees. The difficulty was that if the ads continued to be broadcast, they would have been on the air within 30 days of the primary election and 60 days of the general election, and mentioned Feingold — who was seeking reelection. Recognizing that the ads would be illegal electioneering communications under the McCain-Feingold Act, WRTL sued, alleging a violation of its First Amendment rights. The Supreme Court agreed.

Just three terms before, however, the Court had held — in McConnell v. Federal Election Commission — that McCain-Feingold, on its face, did not violate the Constitution. The chief justice and Justice Alito distinguished that precedent on the ground that WRTL mounted a challenge to the act as applied. Justice Scalia, joined by Justices Kennedy and Thomas, rejoined that “seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. . . . This faux judicial restraint is judicial obfuscation.” That verdict seems entirely just. McConnell should have been explicitly overruled.

The most dismaying performance by the new justices, however, came in Morse v. Frederick. At an event sponsored and supervised by his high school, student Joseph Frederick unfurled a 14-foot banner reading “Bong Hits 4 Jesus.” The school principal confiscated the banner and suspended Frederick for ten days. He sued. So perverse has First Amendment law become that the principal, Deborah Morse, had to defend her action on the ground that the banner promoted the use of illegal drugs. The Supreme Court, five to four, upheld the principal in an opinion by Chief Justice Roberts, but did so on the flimsy defense advanced by Morse. Worse, Justice Alito, joined by Justice Kennedy, joined the opinion “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

That position derives from a 1969 opinion by Justice Abe Fortas, upholding the right of public-school students to protest the Vietnam War by wearing black armbands in classrooms. Over Justice Hugo Black’s indignant dissent that the Court had taken from school authorities the power to control pupils, Fortas advanced the mindless proposition that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In the Bong Hits case, only Justice Clarence Thomas’s splendid opinion pointed out the pernicious frivolity of that position.

After quoting a law-review article about the social problem — “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools” — Thomas wrote: “To elevate . . . impertinence to the status of constitutional protection would be farcical and would indeed be to ‘surrender control of the American public school system to public school students.’” Handing grade-school and high-school students the right to use school hours for political and social proselytizing is educational as well as constitutional malpractice.

In Morse, the Court, with the agreement of Roberts and Alito, enlarges once more its ever-expanding powers, usurps the authority of other institutions, damages their integrity and competence, and demands social permissiveness as if it were constitutionally mandated.

In partial extenuation of some of these decisions: It may be that Roberts and Alito eschewed clarity and made artificial distinctions in order to hold Kennedy’s vote. That supposition is supported by Kennedy’s performance in Parents Involved in Community Schools v. Seattle School District No. 1. That decision, again five to four, struck down racial balancing in public schools allegedly justified by the familiar hoax of the need for “diversity.” Though Roberts’s opinion for four of the five justices displayed some unfortunate ambiguities, Kennedy’s concurrence, which will be the controlling precedent, created a result, but nothing that can be called law. As Manhattan Institute scholar Abigail Thernstrom commented: “Alas, with Justice Kennedy we end up with the court’s familiar and utterly unprincipled formula: Racial sorting is sometimes OK, but sometimes not. It all depends.”

It is surely premature to judge the performance of Roberts and Alito on the evidence of these decisions. But at the end of this past term, they gave us some cause for worry, particularly since the problem of assuaging Kennedy to get the necessary fifth vote is not going to go away.