The Supreme Court handed down various important decisions today though overall followed their "little a bit at a time" philosophy that guided their practice for the last decade, excepting those times when it did not. It might be said that their care allows them now and again to hand down big decisions such as holding execution of the mentally retarded or those under eighteen is unconstitutional. A sort of "judicial review quota" system.
Filing Sharing: The Court unanimously, but split three ways on future applications, that Grokster in some fashion furthered copyright infringement. It did not hold that file sharing programs per se were illegitimate, which is good news. The problem was that there was various evidence that this particular service intended to further illegal use or was negligent in not doing so by means such as filtering mechanisms.
The latter seems suspect to me to the degree that VCRs do not require filtering, but it's an open question since the case in various ways limited itself to the facts. A debate among two three justice concurring opinions* on how strictly the rule upholding VCRs should be read as applied to file sharing (how much proof of legitimacy is required) was just a dicta debate. I am not familiar enough with the facts to challenge the majority, but it is a sound result. Justice Breyer's pro-transfer concurrence has some good stuff.
Broadband: Another opinion (splitting Thomas and Scalia) involved statutory interpretation on a major issue; the majority upheld the regulation allowing broadcast cable providers to bar competitors ... unlike dial up providers, this is not a "common carrier."
Though telephones are (more) clearly common carriers, it seems to me that this at best a correct interpretation of a bad policy choice. Why should broadcast cable providers (accept perhaps because they are new and need the discretion) have this special privilege? The importance of free commerce of information holds across the board with both commercial and free speech interests at stake. This is a bit of a gut feeling though and again it is not necessary relevant to the decision.
Two criminal justice rulings. One (5-4) held a special procedure (when potentially compelling evidence arose in a death penalty case late in the day) was a violation of proper rules. The case was narrowed to this one specific case, but Justice Breyer had a compelling dissenting opinion showing why the care shown here should be praised, not held to be a breach of discretion.
Another ruling (7-2) held that the relevant state law did not give a woman under an order of protection a "property right" under due process of law to receive police services (the net result was her two children was killed by her husband, who then committed suicide). An emotional case that turned on a statutory point as well. The case was not about right to services per se, but if it was protected in this very case. The dissent appears to have a point that the majority misconstrued the law, while going out of their way to do so.
Ten Commandments: The Supreme Court 5-4 held that one display in a court house was unconstitutional because of bad intentions, but also 5-4 that a Ten Commandments monument outside the seat of the state government was legitimate as a historical recognition of religion and morality.
Justice Breyer (of all people) split the baby, while Justice O'Connor dissented in both cases. Justice Breyer in fact robbed the plurality in the second case of much significance because he distinctly agreed with joined O'Connor's concurrence (just not as applied here) in the first one. Basically, he said that the outside display just was not serious enough to be a breach.
Justices Stevens and Souter (joined by three and by O'Connor "essentially") tried to explained to him why it was. As Justice Souter noted: "A governmental display of an obviously religious text cannot be squared with neutrality, except in
a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others."
A freestanding sectarian Ten Commandments statue just does not meet the test. It is much more blatant than "under God" or "In God We Trust" and any number of other things. Furthermore, there was no secular purpose. The statues was donated by a group with the purpose of promoting morality via "biblical teachings," which "injects a religious purpose into an otherwise secular endeavor."
Justice Souter also targeted some of the other dodges. The set of monuments were argued to be a piece: a monument museum that should be viewed as a whole. Nonetheless, but "17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass."
Nor did the fact it took a long time to sue compel an opposite result, both because there was other reasons than the "trivial" nature of the dispute for the delay and because the history of litigation over time in other places itself suggests it is not trivial. And, Justice Stevens noted that statements of various politicians over time (besides not being consistently in one direction) is just not the same thing as a permanent display that is not limited to the views of one specific individual.
Finally, Justice Stevens provided various rebuttals to Justice Scalia** in particular, including the suggestion "that nonmonotheists make up a statistically insignificant portion of this Nation's religious community" for the purposes of First Amendment doctrine. As compared to Jews and Muslims, who combined have numbers smaller? Anyway, it is a moot point because the Ten Commandments itself is pretty sectarian, since there are multiple forms. One important dispute is over the inclusion of a reference against "images." Thus, the matter of of some importance, even if there are more important religious debates being litigated. The Ten Commandments are clearly religious and state endorsement of one among many sacred texts is clearly a troubling "establishment" of religion. As Justice Stevens tellingly notes:
The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagogues, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall.
But, ultimately, this case is not about first principles alone. It is about blatant violations thereof. This is not all about allowing "religion in the public square." It is about a particular form of one particular form of it. It is not about a place for an item with some religious content in government sponsored displays. It is about the selection of one individual religious content above all others and putting it in a primary place of importance. So we inclusions of little Ten Commandments in bigger friezes on court walls or some collection of documents (honestly not on a pretext -- see the companion case) of some religious significance may or may not be an issue, but is clearly not involved here.
Justice Breyer is Jewish but his daughter wrote a book about her decision to choose a religious vocation of a Christian character. This is religious pluralism at work. Displays like this is favoritism and is unconstitutional. And, since religious favoritism is involved in many of the political debates today, it is a canary in the mineshaft about basic constitutional principles.
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* Justice Breyer vs. Justice Ginsburg and Justice Scalia v. Justice Thomas are but two interesting splits among the opinions handed down today. The Court clearly is not just divided 5-4 on everything.
** Justice Scalia had the job of supplying the dissent in the Ten Commandments display that was struck. It is an offensive piece of work starting with its 9/11 reference and comparison between the U.S. and secularist Europe. Now he decides he has the ability to interpret foreign constitutions?
Just one more offensive piece: his penchant to water down religious differences in promotion of a general principle supportive of "God." As noted, the Ten Commandments display is not a vanilla item, but one form of a sectarian religious item. But, his penchant to disfavor (certain) religions to favor his particular definition of "religion" is nothing new. All the (selective) religious quotes from public officials won't change that.