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The Supreme Court Phalanx

1.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, “It is not often in the law that so few have so quickly changed so much.”

It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and deference to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition abandons restraint when it strikes down legislation that conservatives oppose, like regulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for displaying ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns.1 These four justices seem to follow Fox News instead.

They need a fifth vote to win the day in particular cases, and they most often persuade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O’Connor’s place as the swing vote on the Court. Twenty-four cases—a third of the Court’s decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer—in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisanship when he voted with the majority in the Court’s intellectually disreputable 2000 decision to elect Bush president.2 He wrote a poor and insensitive majority opinion this year in the Court’s so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)3

But in 1992 Kennedy joined O’Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,4 and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.5 He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

2.

These are strong claims about the revolutionary character and poor legal quality of many of the Court’s 5–4 decisions, and it is necessary to review these decisions with some care, in the remainder of this essay, to explain and defend those claims. The most important decision was the Court’s 5–4 ruling striking down school student assignment plans adopted by Seattle and Louisville. The plans of the two cities differed, but the goal in both was to reduce the depressing racial homogeneity of their schools. Seattle had never imposed racial school segregation by law; Louisville had, and had been ordered by a federal court to implement an integration plan, but that court had later declared the city no longer in violation. The marked racial isolation of students was therefore not the result of any contemporary legal segregation. But it was produced by geographical divisions in housing that created ghettos and ghetto schools, and that were themselves the result of many decades of systemic racial discrimination in all aspects of American society and culture.

The resulting racial isolation of young Americans at the beginnings of their lives is a national disgrace; that isolation perpetuates racial consciousness and antagonism in both blacks and whites. There is formidable evidence—Breyer cited much of it in a long and brilliantly argued dissent that Stevens called “unanswerable”—that the racial isolation has very serious educational disadvantages as well: black students do significantly better when they are not in either almost all-black schools or schools with very few blacks. Thomas, in a concurring opinion, cited contradictory studies, but Seattle and Louisville were certainly entitled to rely on the detailed and impressive evidence that Breyer cited.

Some of the schools in these cities—those in nonblack neighborhoods—are predictably more in demand from students and their parents than others. When applicants for a particular high school exceeded available places, Seattle used “tie-breakers” to decide among them. The first tie-breaker favored applicants with a sibling already at the school. The second operated when the oversubscribed school had a balance of white to nonwhite students that was not within 10 percent of the balance in the school district as a whole: it favored applicants whose admission would bring the racial balance in the school closer to that target. The third tie-breaker, if still necessary, favored students who live closer to the school over those further away.

Louisville has a black student population of approximately 34 percent. In order to avoid all-black and all-white elementary schools, it divided its school districts into clusters, each covering different kinds of neighborhoods, and it permitted parents to apply to any school within the cluster that contained their own district. It defined acceptable “extremes” of racial balance—a school must not fall below a minimum of 15 percent or exceed a maximum of 50 percent black students—and did not accept applications to any particular school that would cause it to violate those requirements. No one doubts that avoiding academic ghettos is a desirable goal, and Seattle and Louisville adopted candid means of seeking it. How can the Constitution be read to deny them that opportunity?

Roberts, who wrote the majority opinion, hardly mentioned the great social problem the cities were trying to address. He noted the dispute about whether “racially concentrated” schools are educationally disadvantageous, but said the Court need not take a view of the matter because it would make no difference to its decision even if those who thought such schools seriously harmed students were plainly right. He defended that remarkable claim with an analysis that must strike readers with little knowledge of traditional constitutional slogans as baffling.

It is settled, he said, that the Court must subject any official “race-conscious” plan to “strict scrutiny,” which means that it must strike such a plan down unless the state demonstrates, first, that the plan is necessary to achieve some “compelling interest” and then, second, that the plan is “narrowly tailored” to serving that interest, in each case as these quoted phrases have been defined in past decisions. The cities’ plans failed both those conditions of strict scrutiny, he said.

The Court had recognized, he continued, only two compelling interests that could justify race-conscious plans. The first is the interest of a school system that had formerly been guilty of explicit, legally enforced racial segregation in correcting the remaining effects of its unconstitutional past. Neither Seattle nor Louisville had such an interest, Roberts insisted: Seattle had never been found guilty of official segregation, and Louisville had already been declared to have cured its past discrimination. It is puzzling, however, why it should make a difference to the constitutional permissibility of the plans whether the conceded racial imbalances they address were the consequence of official segregation or equally effective patterns of private discrimination. The harm of ghetto education both to students and to the community as a whole is equally grave in both cases, and those who benefit from integration plans are no more entitled to that benefit in one case than the other.

In any case, as Breyer pointed out in his dissent, whether a state has been ordered to integrate is often a matter of historical accident. Seattle had been sued and might well have been ordered to intergrate if it had not secured a settlement by promising to adopt an integration plan itself. It seems preposterous that a plan that would have been constitutional if adopted a day after a court declaration should be unconstitutional because it was adopted to forestall that declaration.

The second “compelling” interest the Court had recognized, according to Roberts, was the interest of state universities and professional schools in a “diverse” student body. The Court had held, in its 2003 Grutter decision, that the University of Michigan Law School was constitutionally permitted to take race into account, as one factor among many, in seeking a diverse student body as academically beneficial to all students. But that holding, Roberts insisted, was limited to institutions of higher education, and did not apply to elementary and high schools. In any case, he added, the cities’ plans were not “narrowly tailored” to any goal of diversity, because Seattle measured diversity only by the balance between white and nonwhite students, and Louisville only by the proportion of African-American students, in both cases neglecting the distinct diversity contributed by Asian-American, Latino, and other racial and ethnic groups. In fact, he said, these plans aimed not at diversity but at a particular racial balance, and he noted that the Court had on several past occasions declared that racial balance was not, on its own, a compelling state interest.

Again, this argument is misplaced. Seattle and Louisville did not—and had no reason to—aim at proportional representation of all the many races and groups that a census of their residents might distinguish and it is silly to criticize them for not “tailoring” their plan to any such pointless goal. They aimed in different ways at avoiding a striking and dangerous degree of the one imbalance that, sadly, matters most in America now: the isolation of white and nonwhite children from each other. Roberts said that “accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society….” That slippery-slope argument assumes that the cities were trying to achieve a stipulated racial balance for its own sake, as if mimicking a community’s overall racial balance in all its institutions were in itself a desirable political goal or represented a fair division of political spoils. But the cities aimed only to correct a specific kind of racial isolation that almost everyone agrees is particularly malignant: in the training of children for future citizenship. Their defense of that aim would certainly not justify more general plans for racial balance in all other institutions. A court that cannot see these crucial distinctions is not so much color-blind as just blind.

What harm did the cities’ plans threaten that the Constitution should be thought designed to forestall? Roberts declared that the harm the plans inflict is “undeniable.” But his statement of that harm begged all the key factual and moral questions at issue. He said that programs that use race as a criterion for accepting applicants promote “notions of racial inferiority and lead to a politics of racial hostility,” “reinforce the belief…that individuals should be judged by the color of their skin,” and “endorse… the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” These unqualified claims wholly ignore the extensive evidence exactly to the contrary that Breyer collected in his dissent. Racial inferiority, stereotyping, and blocs are rampant now, even after the end of official segregation, and according to many experts the main cause of these evils is precisely the isolation of blacks from other members of the community, particularly in childhood, that the cities’ plans tried to attack.

Yes, Thomas, the only black justice, repeated in his concurring opinion his often-expressed view that race-conscious remedial programs are demeaning to blacks and can be defended only on the unacceptable supposition that blacks cannot learn when surrounded only or mainly by other blacks. He was obviously the beneficiary of such programs through his impressive rise from a very poor background through the Yale Law School and on to the Supreme Court, and commentators speculate that his own personal history—presumably to be described in his forthcoming autobiography—explains his view that such programs nevertheless are bad for his race. In any case, however, his views are not shared by a majority of the blacks who have been helped by affirmative action, and they are rejected in most though certainly not all of the pertinent sociological literature. Roberts’s hyperbolic claim of “undeniable” harm is flatly contradicted by even the most cursory examination of that literature.

He is right, however, that the clumsy conceptual apparatus he deployed—the elaborate doctrines of “strict scrutiny,” “compelling interests,” and “narrow tailoring”—is firmly established in Supreme Court precedents in such cases, and we must therefore consider how that apparatus should now be understood and applied. None of these phrases is in the Constitution, whose pertinent clause, in the Fourteenth Amendment, requires only that states provide all persons with “equal protection of the laws.” The jurisprudence of strict scrutiny was developed by the Supreme Court over many decades in order to help specify what that very abstract constitutional language actually demands.

The Court subjects most legislative distinctions among citizens—those that impose different regulations or restraints on different occupations or professions, for instance—to a relaxed “rational basis” test: these distinctions do not deny equal protection if any not plainly irrational justification can be found—or imagined—for separating citizens in that way. In a famous decision, for instance, the Court upheld a state law forbidding oculists from placing an old lens in a new frame without a new prescription, which seemed unfairly to discriminate in favor of optometrists, who alone could provide a new prescription. It may not seem sensible, the Court said, to suppose that eyes need to be reexamined whenever a frame breaks, but that view is not plainly irrational.6 But certain kinds of distinctions among citizens—by race, religious group, or national origin—are “suspect” and permitted only if they meet the very much more exacting test of strict scrutiny I described.

All lawyers are familiar with the phenomenon of doctrinal ossification. An appellate court writes a set of formulaic standards to guide itself and lower courts in interpreting abstract constitutional clauses, standards that produce decisions that are obviously correct in the cases then pressing; but later the same standards when applied to new political circumstances seem to require decisions of uncertain or dubious moral merit. The special strict scrutiny category for racial discriminations served well to protect citizens from state legislatures once bent on new forms of discrimination against historically subordinated or vulnerable groups. But the broad definition of the “suspect” category, to include all race-conscious classifications, seemed less appropriate when affirmative action and other race-conscious programs became popular, because then the formulas presented what seemed to many people an obstacle rather than a guide to racial justice. That development called, at a minimum, for a new attempt to find integrity in the law by constructing a new justification for the strict scrutiny category and analysis. For over a decade two justifications competed for ascendancy in the Court’s affirmative action cases.

The first is the justification Roberts offered for his conservative colleagues in these cases: that all racial classification must be treated as suspect because racial classification is an evil in itself, to be tolerated only if narrowly tailored to some goal already established as compelling in previous cases. That justification has been vigorously defended by Scalia, Thomas, and other justices, but it is contradicted by much evidence, as I said, and it has never attracted a majority of the Court.

Instead a second, more subtle justification emerged from the Court’s decisions; it was articulated principally by O’Connor in a series of increasingly sophisticated and thoughtful opinions. She defended strict scrutiny on evidentiary grounds: it is necessary that all racial classifications, even those that appear benign, meet the tests of compelling interest and narrow tailoring, she said, in order to “smoke out” illegitimate motives for racial distinctions disguised as benign ones. “Absent searching judicial inquiry into the justification for such race-based measures,” she said in the 1989 Croson case, “there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.”7 In that case she held that the city of Richmond, Virginia, half of whose population and more than half of whose city council was black, had not shown that its plan to reserve 30 percent of construction contracts for black firms was not “simple racial politics.”

But she made it plain, in that case and in later cases when she spoke for a majority of the Court, that the distinction between illegitimate and benign policies remained crucial: the point of strict scrutiny was not to obscure that distinction but more rigorously to enforce it. So in the Grutter case in 2003 she upheld the University of Michigan Law School’s race-conscious admission plan because the point and structure of that plan demonstrated beyond question that its purposes were legitimate.8 Roberts claimed to distinguish the Grutter precedent on the ground that it sustained a university, not an elementary or high school program. That is the kind of distinction—unrelated to any difference in principle—that first-year law students are taught to disdain.

The principle underlying the Grutter decision therefore dictated upholding the Seattle and Louisville plans. In the latter cases, as in the former, careful study left no ground for the slightest suspicion that the race-conscious plan aimed at any illegitimate or merely political goal. Unlike some affirmative action admission or employment schemes, the cities’ plans deprived no one of any advantage he might think himself entitled to have in virtue of personal merit. They benefited no race over any other: they might as easily deny a black student his first choice of school as a white student. They aimed at a goal widely regarded as best for the community as a whole. If Roberts and his colleagues had respected the principled, evidentiary interpretation of the strict scrutiny requirement that the Court had carefully established in previous cases, they would have upheld the cities’ plans. His opinion—as Breyer and the other dissenters pointed out—was therefore an implicit overruling of Grutter because it rejected O’Connor’s understanding of strict scrutiny in favor of the cruder principle that all racially sensitive plans are harmful in themselves, an assumption that the Court had explicitly rejected in Grutter and long before.

I must emphasize that Kennedy, in a separate concurring opinion, took care to reject the claims of Roberts and the other right-wing justices that school districts may never use race-conscious programs to reduce racial isolation in their schools. He declared that a city might take race into account in many ways for that purpose: it might locate schools in and divide school districts among residential areas with the declared intention of making it more likely that schools would be racially mixed, or it might “recruit students and faculty in a targeted fashion,” for example. He voted with the phalanx because he found a special infirmity in the cities’ plans: they turned too specifically on the race of each individual school applicant, one by one, and made race decisive, at least in certain circumstances, rather than only one factor to be considered among many.

Kennedy’s separate opinion is important because it means that only four justices, not the Court as a whole, have voted to overrule Grutter. He joins the four dissenters in trying to respect the settled understanding of strict scrutiny. But his opinion is nevertheless mysterious and regrettable because it condemns the cities’ plans by citing a distinction that is wholly without a difference. He declared that what is objectionable is “treating each student in different fashion solely on the basis of a systematic, individual typing by race,” and he condemned the plans for that reason. But a student’s race was decisive on its own, under those plans, only if certain other conditions were met—when the racial tie-breaker was necessary, in the case of Seattle, or when his desired school exceeded permissible extremes, in Louisville’s case.

Kennedy seemed unaware that an individual’s race is also decisive on its own, under certain circumstances, in plans he had himself approved: when a city hires faculty with a racial “target” in view, for instance, or when it counts heads by race so as to locate schools or define districts with a particular racial mix in mind. True, the distinction between taking race to be decisive and counting it as one factor among many has figured prominently in Supreme Court rhetoric since the earliest affirmative action cases. But that distinction, for all its popularity, is almost always illusory and in any case has no basis in political or moral principle.9

Kennedy rightly insisted that state and local governments should be entitled to employ racial classifications “with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races.” That is a wise constitutional principle and it fits the precedents. Taken seriously, it calls for now abandoning the anachronistic and clumsy strict scrutiny apparatus for judging racial classifications, as Breyer, in his dissent, explicitly recommended. But it is not consistent with Kennedy’s own vote in these cases. In his dissent, Breyer called attention to the many other states whose school programs aim at reducing racial isolation in ways that the right-wing justices would apparently now strike down as unconstitutional. We can expect much litigation as white parents hostile to these plans now challenge them in court, holding Roberts’s opinion aloft. The future character and value of American education might well depend on how a single justice—Kennedy—clarifies his position to make it more consistent as these cases flow through the courts.

3.

Roberts and his right-wing colleagues voted to overrule the recent Grutter decision by stealth—without conceding that they were overruling anything. They used the same tactic in a rush of other cases decided at the end of this year’s term, including a 5–4 ruling permitting corporations and unions to run television commercials before elections that are thinly disguised attacks on particular electoral candidates. Corporations and unions have long been forbidden expressly to endorse or oppose any particular candidate, though they may establish political action committees (PACs), which are subject to various special restrictions, to do that. For decades corporations and unions blatantly evaded that prohibition without relying on PACs by running television “issue ads” that declare a position on some political controversy and urge viewers to let a particular named candidate know their views on that subject but do not use “magic words” that explicitly urge a vote for or against him.

In a famous example, a corporation called Citizens for Reform opposing Bill Yellowtail, a Montana candidate for Congress, ran an ad accusing him of beating his wife and cheating on child support payments, and then urging viewers to “Call Bill Yellowtail. Tell him to support family values.” No one doubted that such “issue” ads were meant to help elect or defeat particular candidates; they were an evident and much-exploited loophole through which large organizations could contribute vast sums to political campaigns in return for expected “access” and other favors from successful candidates. The most serious threat to our democracy is now the grotesque and increasing dependence of politicians on rich individual and corporate donors. A 2002 poll reported that over 70 percent of Americans—an astounding proportion—think that congressmen vote to please major contributors, not as they themselves think best for their country.10

In 2002, Congress adopted the Bipartisan Campaign Reform Act (BCRA) sponsored by Senators John McCain and Russell Feingold. In its section 203, that act forbade corporations to sponsor “electioneering communications,” defined to include “any broadcast, cable or satellite communication” made before an election that “refers to a clearly identified candidate for Federal office.” In 2003, the Supreme Court, in the McConnell case, ruled this provision “facially” constitutional, meaning that it did not on its face violate the First Amendment or any other constitutional provision. It added that there might be circumstances in which the section would be unconstitutional “as applied” to a particular case, though it insisted that these exceptions would be very special and that most of the issue ads then common would not fall within any such exception.11

In the new case, Federal Election Commission v. Wisconsin Right to Life (WRTL), the phalanx and Kennedy overruled McConnell without admitting that it was doing so. WRTL is a nonprofit corporation that opposes abortion rights and has repeatedly denounced Wisconsin Senator Feingold for joining filibusters to prevent the Senate from confirming Bush’s appointments of anti-abortion federal judges. It sued because it wished to run an “issue” ad during Feingold’s reelection campaign decrying filibusters and telling viewers to “tell” him about the issue, though not telling them explicitly to vote against him. The ad referred viewers to the organization’s Web site for information about how to contact Feingold, and on that Web site WRTL denounced him and urged a vote against him. Roberts, writing for the 5–4 majority, declared that the ad nevertheless fell within the class of exceptions the McConnell decision contemplated. He said that any ad should be considered an exception if it could reasonably be understood simply as recommending that the viewer discuss his views with the candidate, even though most viewers would undoubtedly understand it to call for a vote for or against that candidate, and even if the organization intended that they draw that conclusion.

That opinion overruled McConnell as effectively as if it had done so explicitly, as Scalia, who joined in the decision but not in Roberts’s opinion, recommended in his concurring opinion. If the WRTL ad fell within the contemplated exceptions, then so does every other issue ad ever broadcast, including the Yellowtail ad and the hypothetical Jane Doe ad that the McConnell court offered as examples of what section 203 plainly banned.

Many scholars worry that it does offend free speech for Congress to prohibit anyone, including a corporation or a union, from broadcasting an opinion about political issues—or indeed about political candidates—during election contests. They support campaign contribution restrictions, including prohibitions of fake issue ads, as a necessary compromise between First Amendment and other values. In my own view, the issue calls not for a compromise but for a more sophisticated understanding of what First Amendment values actually are.12 The Rehnquist Court in the McConnell case made a much more intelligent decision, less than four years ago, than the Roberts Court has made now. But in any case the latter’s decision to overrule that earlier decision not explicitly but through a laughably cynical subterfuge, by claiming practically every conceivable issue ad to be an exception to McConnell‘s ban on such ads, is as demeaning to the Court as it is threatening to our democracy.

The First Amendment received very different treatment in another 5–4 decision of the term, the Frederick case.13 When the Olympic Torch Relay ran through Juneau, Alaska, a high school allowed its students to leave their classrooms to watch, from both sides of the street, supervised by their teachers. When the television cameras were on them, Joseph Frederick and a group of fellow students unfurled a fourteen-foot banner that read “BONG HiTS 4 JESUS.” The principal of the school, watching the students from across the street, commanded them to put the banner down. Frederick alone refused and was suspended from school for ten days as punishment. Did the principal’s order violate Frederick’s First Amendment rights?

Once again an earlier Supreme Court decision seemed dispositive. In its 1965 Tinker decision the Court held that a school could not forbid students to wear black armbands in protest against the Vietnam War. Though schools may impose constraints on students’ speech that could not be imposed on adults, it said, in order to avoid disruptive and offensive speech that impairs the school’s educational activities, First Amendment rights do not evaporate at the school door, and a school cannot prohibit nondisruptive speech just because it expresses an unpopular opinion. Frederick’s banner disrupted no educational activities, as none were in process during the relay. But Roberts declared that the banner could be understood as urging students to smoke pot, which is both illegal and a violation of a firm and very important school policy, and that the banner therefore had no First Amendment protection.

Of course, the banner’s message could also be interpreted, just as plausibly, in several very different ways. Frederick testified in the lower court that he and his friends only wanted to attract television coverage—a rare event in Alaska—by holding up a demonstrably silly message. He said the whole point was gibberish. But the message could also and easily be read as political: that pot should be legalized because it produces an experience with a religious quality. That message, which advocates no law-breaking, would clearly be protected speech. In the WRTL case, Roberts had declared that issue ads have First Amendment protection if they can reasonably be interpreted as not recommending a vote for or against a candidate they mention; in First Amendment cases, he insisted, ambiguities should be resolved in favor of protection. In the Frederick case he declared the very opposite: if student speech can be interpreted as advocating a criminal act, even though other interpretations are at least equally plausible, the speaker may be punished. Ambiguities are to be resolved against protecting free speech. It is hard to resist the suspicion that, for Roberts, anti-abortion groups have constitutional rights that students who joke about drugs and Jesus do not. In his moving dissenting opinion Stevens warned that the consequences of this attitude for future First Amendment jurisprudence are frightening.

The Court silently overruled yet another important precedent, again by a 5–4 vote, in the Hein case.14 The conservative justices created, as they conceded, an arbitrary distinction to deny anyone legal standing to challenge Bush’s “faith-based initiative” programs as violations of the First Amendment’s prohibition against government establishing religion. The Constitution gives federal judges the power to decide only “cases and controversies,” and that phrase has been interpreted to mean that only some person or group who has been damaged by an official act can sue to have that act declared unconstitutional. The Supreme Court made plain long ago that no one has standing to sue just because his taxes may have been used to finance an allegedly unconstitutional act. In view of the size of the federal budget, the supposed damage to everyone who pays taxes is simply too trivial to count. Otherwise the federal courts would be occupied with the suits of every aggrieved citizen with a bizarre constitutional theory. So if your property interests are directly affected by, say, federal wetlands regulation that you believe exceeds Congress’s powers, you have standing to sue. But not if you have no greater interest than that of any other taxpayer.

There is one outstanding difficulty with this doctrine, however. Government may support religion unconstitutionally, in violation of the First Amendment, in ways that inflict no special financial or other damage on any particular citizen, in which case there would be no way for anyone to challenge the unconstitutional acts in court. In 1968, in its Flast decision, the Court therefore created an exception to its general rule: it held that a group of taxpayers with no special financial stake could sue to prevent officials from distributing money to church organizations along with other welfare groups. Justice Potter Stewart said, in that case, that “every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution.” Now a group of taxpayers has sued to challenge a variety of Bush’s programs that include official conferences, speeches, and grants celebrating and supporting the role of religious institutions in community work.

Alito wrote for the 5–4 majority denying these taxpayers standing to sue. He distinguished the Flast precedent on the ground that in that case the allegedly unconstitutional program was adopted by Congress while in this case it was adopted by the executive branch. That distinction is obviously, embarrassingly irrelevant. As Souter pointed out in his dissent, joined by Stevens, Ginsburg, and Breyer, Alito was unable to produce a single reason why the institutional source of the allegedly unconstitutional act could make any difference. Scalia, in his concurring opinion, made the same point forcefully: he said that it was incumbent on the Court either to overrule Flast, which he recommended, or to grant the taxpayers in this suit standing to sue the president. Alito’s distinction, he said, was preposterous. Alito could only say lamely, in reply, that “it is a necessary concomitant of stare decisis that a precedent is not always expanded to the limit of its logic.”

That is a serious jurisprudential confusion. The first, essential virtue of constitutional law is integrity: the law must allow all citizens the benefit of whatever constitutional principles protect some of them. That is what equal citizenship means and demands. Lower courts must sometimes respect superior court decisions that they cannot overrule but that have been isolated by intervening doctrine and should therefore be interpreted narrowly. But for the Supreme Court stare decisis—respect for precedent—means something deeper and more important. It means respect not for the narrow holding of earlier cases, one by one, but for the principles that justify those decisions.

The facts of the Hein case demonstrate the importance of that requirement: ignoring principle allows judges to make decisions on partisan grounds. In this case it allowed five conservative justices to bar any constitutional test of a conservative president’s religious initiatives. Would they have reached the same result if a president had launched programs to support and proselytize for atheism?

In effect, the majority overruled Flast in pretending to distinguish it. Scalia was wrong, however, to recommend explicit overruling. As lawyers for the taxpayers pointed out, the majority’s decision would allow the president to build and finance churches from general appropriations without any citizen being able to challenge that obvious violation of the First Amendment. Alito replied that this has not yet happened, which is scant comfort, and that if it did Congress would step in to deny the president that power, which is not just speculative but in many circumstances unlikely. Even if the Senate belonged to the other party, it might be difficult to persuade sixty senators to close debate on what would be described to the religious public as an antireligious bill. In any case, the Constitution exists to protect citizens from having to rely on shifting political popularities to protect their most basic rights.

Respecting the principle of Flast would not have opened the courts to indiscriminate taxpayer suits claiming to enforce a variety of constitutional rights. The clause that forbids government to establish religion is special in a way that allows the Flast exception to be limited to that clause. When acts of government violate other constitutional rights, the government’s expenditure is only a means to a further injury. When government jails someone without due process, for example, it harms him not by spending money on jails but by putting him in one. The establishment clause is different: when government violates that clause by spending money in support of religion, the expenditure is not just a means to some further harm. The expenditure is itself the harm. It is part of people’s right to freedom of conscience that their government, acting on their behalf and in their name, not support any religion or religious institution.

Scalia misunderstood that: he said that the Flast principle supposed a right to be free from “psychic” injury, as if the damage to citizens when government discriminates in favor of religion is only psychological. In fact the damage is to every citizen’s religious independence. The Supreme Court should have judged the constitutional objections raised in this case on their merits. Perhaps it would have decided that the supposed constitutional objections to Bush’s speeches and conferences were frivolous. But that would have been more satisfactory and professional than hiding behind an unprincipled distinction indiscriminately to bar challenges to faith-based programs.

Another 5–4 decision took up an issue not of national importance but of common decency.15 Keith Bowles had been convicted of murder and sentenced to fifteen years to life. A federal judge told him and his lawyer that he could appeal a denial of habeas corpus any time until February 27, 2004, and he filed on February 26. The judge was wrong; the statutory time limit elapsed on February 24. Was the appeal barred? The issue depends on a technical distinction. If the time limit is treated as jurisdictional—that is, as governing the appellate court’s legitimate authority to consider and decide the matter—then the appeal was necessarily barred, because no court had the legal power to hear it. But if the time limit is treated as only mandatory—the accused has no right to an appeal after it expires—then an appellate court can hear the appeal, if it wishes, in the exercise of a discretion to act fairly, which certainly would have been appropriate in this case. Until a few years ago, the Supreme Court had treated time limits as jurisdictional. But in a series of recent decisions, a unanimous court had conceded that it has been misled by the ambiguities of that technical term, and that time limits should henceforth be treated as mandatory instead. Thomas, writing for the majority in the Bowles case, ignored these repeated statements and insisted that the appeal was absolutely barred in spite of the fact that it had been filed in accordance with a federal judge’s instructions. One might think that judges would strain to avoid such an injustice if that were possible consistently with established principles. As Souter pointed out, in a dissent joined by the other more liberal justices, Thomas had to ignore established principle to achieve his unjust result.

4.

In yet another 5–4 decision the right-wing justices, joined as usual by Kennedy, overruled another, even longer-standing precedent, but this time they did so expressly rather than silently.16 In 1911 the Court decided, in the Dr. Miles case, that it is per se illegal under the Sherman Anti-Trust Act—that is, illegal in all circumstances—for manufacturers and retailers to fix minimum prices the retailers must charge for their products. In the new case, Leegin Creative Leather Products, the majority declared that henceforth such agreements will be subject to a “rule of reason” instead, which means that courts will test them to see whether, in the full circumstances of the case, they are anticompetitive and hence illegal, or not and hence legal. As Breyer pointed out in his dissent, this decision, welcomed by manufacturers, might or might not have been sound if the Court were deciding the matter free from precedent. But since economists disagree sharply about whether a per se ban on minimum price agreements is wise, he said, there is no justification for overruling a century-old precedent to which commercial practice had long adapted.

Kennedy, writing for the majority, argued that though Dr. Miles had never been overruled, the Court had reached several related decisions in later years that seem inconsistent with any principled justification of that old decision. The Court, for instance, had permitted manufacturers to stipulate “suggested” minimum prices and to cease selling to retailers who charged less. “The Dr. Miles rule,” Kennedy said, “is also inconsistent with a principled framework, for it makes little economic sense when analyzed with the Court’s other vertical restraint cases.” He quoted this passage from a 2000 decision: “We have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings.”

That is noteworthy for two reasons. First, it affirms exactly the principle of legal integrity that Alito expressly rejected (in an opinion Kennedy joined “in full”) when he insisted on a wholly arbitrary distinction in the Hein case. Perhaps conservative justices are more sensitive to the requirements of integrity when the beneficiaries are manufacturers than when they would be taxpayers objecting to Bush’s religious initiatives. The second reason is more ominous. The abortion decision I reviewed in my earlier article, together with the 5–4 decisions discussed in this essay, might all be seen as part of a longer-term strategy to “undermine [the] doctrinal underpinnings” of important precedents that are formally left standing. Kennedy’s abortion opinion was inconsistent with the general principles that justify abortion rights. Roberts’s school assignment decision was inconsistent with the principle underlying the Court’s Grutter decision, and justifying the Court’s affirmative action jurisprudence more generally. His decision allowing Wisconsin Right to Life to broadcast its partisan “issue” ad was inconsistent in principle with the Court’s earlier decision in McConnell, and therefore with the structure of campaign finance law it had developed. Roberts’s decision permitting a high school to punish a student for displaying an ambiguous banner is inconsistent in principle with the Court’s earlier Tinker decision, and therefore with a great part of its school free speech jurisprudence. Alito’s arbitrary line that prevents legal challenges to Bush’s faith-based initiatives is inconsistent in principle with the Court’s decision in Flast, and therefore with its sense that freedom of conscience is central to the rights of American citizens.

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later. Roberts was careful to qualify his promise to senators not to overrule precedents by allowing that he might have to reconsider a precedent when its “doctrinal bases…had been eroded by subsequent developments.” He has not been a judge for long; his main training and experience is as a litigator, and the strategy I describe is familiar to that craft.

Skilled corporate litigators think ahead like pool players: they argue for their clients on narrow grounds hoping for incremental victories that turn into much bigger ones later. Perhaps Roberts will keep his word and try in future years to build a new consensus that more faithfully reflects the Court’s traditions. But I suspect that his Senate testimony was actually a coded script for the continuing subversion of the American constitution. The worst is yet to come.

—August 30, 2007

Letters

The Supreme Court Phalanx’: An Exchange December 6, 2007

Lotto for Learning? October 25, 2007

  1. 1

    Mr. Tom Dooley was the celebrated creation of the humorist Finley Peter Dunne.

  2. 2

    Bush v. Gore, 531 U.S. 98 (2000). See my “A Badly Flawed Election,” The New York Review, Jan. 11, 2001.

  3. 3

    See my “The Court and Abortion: Worse Than You Think,” The New York Review, May 31, 2007.

  4. 4

    See my “The Center Holds,” The New York Review, August 13, 1992.

  5. 5

    Lawrence v. Texas, 539 U.S. 558 (2003).

  6. 6

    Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

  7. 7

    City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989). See the discussion in Chapter 12 of my book, Sovereign Virtue, Harvard University Press (2000).

  8. 8

    Grutter v. Bollinger, 539 U.S. 306 (2003). See my “The Court and the University,” The New York Review, May 15, 2003

  9. 9

    See my “Why Bakke Has No Case,” The New York Review, November 10, 1977.

  10. 10

    See M. Mellman & R. Wirthlin, “Public Views of Party Soft Money,” in Inside the Campaign Finance Battle: Court Testimony on the New Reforms (A. Corrado, T. Mann, & T. Potter eds. Brookings Institution, 2003), p. 267. This book is cited in Souter’s dissent in this case. See McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

  11. 11

    The Court cited the Yellowtail ad as an example that the act could properly outlaw, and it constructed a sample “Jane Doe” ad, taking a position contrary to a fictitious candidates expressed view and instructing viewers to “call Jane Doe” as another example.

  12. 12

    I argue for this view in Sovereign Virtue, in Chapter 10.

  13. 13

    Morse et al. v. Frederick, decided June 25, 2007.

  14. 14

    Hein, Director, White House Office of Faithbased and Community Initiatives, et al. v. Freedom from Religion Foundation, Inc., et al., decided June 25, 2007.

  15. 15

    Bowles v. Russell, Warden, decided June 14, 2007.

  16. 16

    Leegin Creative Leather Products, Inc. v. PSKS, Inc., decided June 28, 2007.

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