Faculty Panel Reviews Previous Supreme Court Term
By Ken Reitz
The 6th Annual Supreme Court Round-Up, sponsored by the Student Legal Forum, played to a packed Caplin Pavilion audience and featured a panel of Law School professors moderated by Professor A.E. Dick Howard ’61.
Howard provided the historical background on what’s now known as the Roberts Court, headed by Chief Justice John Roberts. He noted that there are no justices left from the Earl Warren Supreme Court era; that prior to 2005 it had been 11 years since there had been any changes on the Supreme Court; and that of the nine sitting justices, seven had been appointed by Republicans and two by Democrats.
Howard pointed out that last year the faculty panel gave the Court a mixed scorecard. “The 2005-2006 term was not a term that was clearly moving in one direction or the other,” he said. With this past term, however, Howard noted, “You can begin to see the more aggressively conservative thrust of the Supreme Court, manifestly the effect of Samuel Alito taking the seat of Sandra Day O’Connor.” Howard cited the partial-birth abortion case and several school cases as evidence of the Courts’ drift to the right.
Regarding last term’s closely watched, and ideologically divided, 5-4 decisions, Howard described the dissenters as frustrated. “They’re more likely to read their dissent from the bench, there seems to be more edge to them,” he said.
Howard noted that while there could be another quarter century of the Roberts Court, several questions arise: “Will these divisions persist? Might there be future vacancies? If so, who will replace them?” And, he wondered, following next year’s election, who will do the appointing?
Howard introduced the panel, which reviewed selected cases and included professors Lillian BeVier, who looked at first amendment cases; Jonathan Cannon, who examined environment related cases; and Jim Ryan ’92, who commented on education related cases.
Prof. Lillian BeVier
BeVier narrowed her review down to two cases: one regarding campaign finances and the other popularly known as “Bong Hits 4 Jesus.” Regarding the 5-4 decision in the campaign finance case BeVier said the case revealed the scope of the division between liberal and conservatives on the Court. “It’s not a divide,” she said. “It’s a philosophical chasm [with] the advocates of free political speech on one side and the proponents of regulation on the other.”
What scares me about this chasm,” she added, “is that I don’t see a way of bridging it.”
“Bong Hits 4 Jesus” involved a high school student’s effort in 2002 to garner face time on TV during the parade of the Olympic torch by erecting a banner reading “Bong Hits 4 Jesus.” Predictably, the school’s principal forced him to take the banner down and the student was suspended. The student later sued, claiming his First Amendment rights had been violated. BeVier described it as “... a case that the ACLU probably should not have agreed to litigate on behalf of the students; that the students should never have gotten to first base on; and that the Court itself should never have taken.” The Court ruled against the student in another split decision. BeVier said it was difficult to judge from these and other First Amendment cases heard throughout the term what direction the court will likely lean on First Amendment issues. She said it reminded her of a quote by Winston Churchill commenting on a pudding he was served, “It was a very nice pudding but it rather lacked a theme.”
Cannon spoke about four important environmental law cases decided last term. He commented that two of the cases were taken against the wishes of the Solicitor General’s office, which was unprecedented in the last two terms. “In three of these four cases,” Cannon said, “the decision was pro-environmental, and even more significantly, in two of those pro-environmental rulings there was a unanimous decision, which meant that the ruling had the support of even the conservative justices on the Court.”
Cannon considered Massachusetts v. EPA the more important of the four because it was the Court’s first case dealing with climate change. He called the Court’s split decision, forcing the EPA to use its authority to regulate greenhouse gas emissions, “A ringing victory for environmentalists who were pushing this case to unlock the national policy process to respond to climate change.” He added that he believed it “provides a rallying point for climate change as a touchstone for the public on these issues.”
Prof. Jim Ryan
Ryan looked at two voluntary integration cases decided in the past term; one in Kentucky and the other in Seattle. He focused on the Seattle case involving a plan in which every student in the city could choose one of ten high schools to attend. That choice would be considered the student’s first choice unless the school was over-subscribed. If that was the case the choice would be made by the school based on several tie-breakers: if the student had a sibling in the first school of choice or if the student’s race would help racial balance at the school of choice the student would be assigned to that school.
He said the written opinions in the split decision against Seattle were rancorous with Justices flinging charges of “recklessness” and “lawlessness” at each other. He said the case served to highlight Justice Kennedy’s position as a swing vote on the panel. Ryan said that Kennedy’s concurring opinion left the door open to revisit the issue. The case offers, “... a glimpse, but only a glimpse, into the Roberts Court, a somewhat troubling glimpse insofar as it suggests that this court may not be as restrained or indeed as principled as we might have hoped, at least where something that we might really care about is at stake,” he said.