Not a good day for liberals at the Supreme Court.
My libertarian side is not upset at the 5-4 ruling on campaign finance, since I simply don't think an issue ad by a non-profit corporation (even in promotion of something for profits might support, namely right wing judges) is the biggest threat to democracy we have to worry about these days. Not by a long shot. I'm wary about limits on campaign ads ... when unions and non-profit ideological corporations are at stake ... definitely so. Some will highlight the fact we are talking anti-abortion here. So what? The principle applies to pro-choice too. There are means to raise all boats and so forth to deal with the issue. Limits on this class of institutions are dubious enterprises.
The 5-4 EPA ruling was statutory, but I reckon that the libs were probably right on the matter. There was also a 7-2 (Souter opinion, Ginsburg/Stevens dissent) limiting access to the courts to deal with a certain class of government wrongdoing dealing with property rights. I guess a matter of strong access to the courts principles (Thomas concurred, upset about -- lol -- "common law" court-created remedies) is worse than threats to property in some cases. Since I believe in strong access to the courts, to just argue your case, I lean toward the two dissenters. Again, as to the more technical point, the majority might have had a case. But, as I noted before, there usually is enough play in the joints in such cases, if the justices care to use them. Property rights sorts might be upset here.
The "Bong Hits 4 Jesus" case somewhat surprisingly went the wrong way too. Many thought CJ Roberts had a minority point of view with his sympathetics toward the school (ironically, the student now is in his twenties and is teaching English to Chinese students) , but it turns out he wrote the majority. It was 6-3 with Justice Breyer having a reasonable approach of trying to avoid the constitutional issue, just saying the teacher should not be liable. But, that is the hook often enough to decide constitutional principles, and five justices did join the constitutional part of the ruling ... though two (Alito/Kennedy) tried to interpret the majority opinion somewhat narrowly (while joining in full). Thomas by himself took the Tinker/Black technique of being a selective believer in free speech ... students need not apply.
This was a lame ass case ... but who is a lamer ass? A sophomoric student or a majority of the Supreme Court who uses him to allow schools to censor a class of speech, viewpoint discrimination style? The school can target "speech [that] is reasonably viewed as promoting illegal drug use," even speech that is really basically asinine only. We have a majority of the Supreme Court parsing a lame ass sign to underline how it is somehow at threat to the educational mission of public schools. Alito/Kennedy apparently thinks it has to do with violence in some fashion too -- since they have to "intervene before speech leads to violence." The idea any comment on drugs is somehow related to that underlines the problem with this case.
The concurrence, especially speech friendly (but drug hating) Justice Kennedy in the mix, has to find a way to underline they are good First Amendment warriors still. But, the nature of the speech here makes the concurrence naive. How exactly does the majority's test NOT provide "support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'" The medicinal marijuana cases underlines the courts think illegal use is illegal use. And, I assume saying drug use is a good thing comments on the "wisdom of the war on drugs." Couldn't a time place and manner rule be applied given the argument here was that this was a school event? Dubious, maybe, but better than viewpoint discrimination defended is such a lame ass matter.
Alito btw wrote the ruling saying that taxpayer standing in Establishment Clause cases (such standing is disfavored, but a Warren precedent noted that the EC is specifically concerned with government spending in this area, so is a special case) cannot apply to executive decisions alone. There is an extreme irony in this case -- it apparently help the President's case that he acted on his own authority using general appropriations ... "created entirely within the executive branch … by Presidential executive order." No law compelled this act ... underlining the ability of the executive to act on his or her own authority in lawless ways. Justice Kennedy's concurrence ended on an amusing -- though one doubts intentionally note:
It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.
Yeah right. Don't need the courts to enforce rights. Ditto the majority's clueless to reality argument that if the executive missteps too much, hey, Congress can just pass a law to restrict them. As if this is so easy given the legislative process, even without the threat of a veto. Likewise, the argument -- noted in passing -- that other means are available to bring a violation to court is somewhat dubious in various cases. Surely, given the stricter standing rules that are growing these days. I reckon if the executive acts in a way that selectively assists religion, some other group can raise a claim. But, a good party might not arise, and here we have a specific case where government spending raises special constitutional principles. [Precedent says no, but I think making public appropriations, per Art. I, sec. 9, is another case.]
It makes little sense to allow standing when legislative acts are clearly involved, but not when a majority of Congress did not even compel/justify a result. Current events underline executive action can be the more troubling and insidious exercise of power. But, again, the Supremes don't want citizens to have a chance for a hearing.