Neocons Win; Free Speech, Religious Freedom, and Endangered Species Lose

Technorati Tags: Supreme Court

The Supreme Court decided four cases today: weakening campaign finance restrictions on ads that air close to elections, curtailing student free speech, allowing the EPA to duck responsibility for enforcing the Endangered Species Act, and barring individuals from suing the federal government for giving taxpayer money to religious organizations.

Andrew Cohen sees it as a 4-4 win for Bush conservatives:

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

Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is so entrenched on the ground of the legal right that, aside from the global warming case decided earlier this year, it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates.
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Indeed, so strong is the conservative bent to the court right now that even when its right-facing Justices did not agree on the legal reasons or rationale for their rulings-- which was the case in the religion case noted above-- they are able to agree to promote government sponsorship of religion and to block taxpayer efforts to prevent it. In other words, there is room for dissent even among the Court's working majority-- a bad sign for liberal judges, lawyers and litigants in the months and years to come.

This is depressing -- all the more so because it's true:

Ultimately, the high court sided with conservative interests across the board. In each instance, the ruling was 5 to 4, and the minority was made up of the same four left-leaning justices (Ginsburg, Breyer, Souter, and Stevens). Alito wrote two of the opinions, and Roberts wrote the other two.

Had Kerry won Ohio in 2004, the right probably would have lost in each of these cases. I guess it’s one of those elections-have-consequences moments, isn’t it?

Scott Lemieux and Shaun Mullen pay special attention to the "Bong Hits 4 Jesus" case, noting in particular that the school's claim that Joseph Frederick's message "promoted drug use" stretches credulity; and that Frederick was not even on school property when he held up the "Bong Hits 4 Jesus" banner.

Reason Magazine, a libertarian publication, sees a disturbing trend:

As I feared, the Court seems to be opening up a "drug exception" to the First Amendment, albeit limited (so far) to students in school. It's true that high school students do not have the same free speech rights as adults, but the Court has held that they do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." They have a right, for instance, to wear anti-war armbands. In that case, the Court held that student speech may be suppressed only if it will "materially and substantially disrupt the work and discipline of the school." A "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" or "an urgent wish to avoid the controversy which might result from the expression" is not enough to justify censorship. But fear of drugs apparently is.

"Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," the Court ruled. So where does that leave a student who wears a "Legalize It" T-shirt, who points out the problems caused by prohibition during a class discussion of drugs, or who shares accurate information about the hazards of marijuana with his fellow students? I suspect principals like Deborah Morris would view all of these student expressions as "encouraging illegal drug use," even though they are also indisputably political speech. If expressing opposition to the Vietnam War is protected even in school, how can expressing opposition to the War on Drugs not be? I have a feeling we're going to find out.

Steve Benen and Nico have comprehensive round-ups.