Partisan Free Politics

So for anyone who was too busy making a living last week to dig through the rush of important decisions coming from the Roberts Court, I figured I would pull out a couple especially interesting cases to start the 1st Annual PFP High Court Low Post. This is my first attempt to cover the Supreme Court, although the Great Divide Ranch’s court is one of the highest courts in the land, so I have some experience to fall back on… Luckily for me the boyish charms of Chief Justice Roberts are easy on the eyes, and Justice Thomas has promised to be gentle with the questioning this term…

I’ll start with the good news:

FEC v. Wisconsin Right to Life (5-4, with Roberts, Scalia, Thomas, Kennedy and Alito beating out Ginsburg, Souter, Stephens, and Breyer, a breakdown that will soon look familiar.): The conservative majority got one right in this case, ruling that provisions of the McCain-Feingold legislation violated the first amendment rights of the nation’s biggest cheese-eating abortion-haters organization, thus strengthening the position of political advocates, and people who generally like free speech. Just about everyone got in on the decision writing here, Justice Scalia actually worked in a quote from an unidentified Moroccan cartoonist, and Justice Souter wrote more in dissent than even I have the patience to wade through. How the four ‘liberal’ members of the court saw fit to impinge free speech, political speech nonetheless, I’m not sure I understand, but if it takes as much BSing as Souter spit out then I’m pretty sure the reasoning is faulty.  In short, the controlling opinion struck down a provision of McCain-Feingold that prohibited advocates from running commercials about issues within two months of the election, and we can count that one as a win for freedom of speech (unfortunately it had some big losses still to come too.)

Parents Involved in Community Schools v. Seattle School District No. 1. (5-4, with the same lineup as FEC and a ton of other cases.) This case surrounded a pair of abyssmal “diversity” plans that only a bloated bureaucracy in a bloated city could come up with. Fortunately for fans of discrimination, America has lots of bloated cities and even more bloated bureaucracies… So we ended up with two, a plan in Seattle that categorized students as either white or nonwhite, and one in Jefferson County, Kentucky that labeled students black or other. Roberts and those steely O’Toolesque blue eyes lived up to everything we had been promised of him in writing the opinion, delivering the kinds of lines that make young girls weep, or would if any young girls ever read Supreme Court opinions… “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” You just know all the girls want him, and all the guys want to be him…

Now on to the bad news, and there was so much I can only hit the lowlights, the 3 most startling recent decisions that are destroying America:

#3: Hein v. Freedom of Religion Foundation Inc. (FRFI) (and yes you guessed it 5-4) Now this is a real doozy of a case with all the excitement of a Tonya Harding MMA match, but suffers because much of the spunk is couched in terms like Establishment Clause and the standing doctrine. The opinion also suffers because I guess Roberts was too busy writing the FEC opinion and he handed this one off to his backup Justice Alito. Now if you are a mother looking to marry off your daughter then you can probably overlook the receding hairline and the pervasive slime, but he just doesn’t do it for me… However, this opinion is particularly juicy for those in our community who love pure evil, and find sadistic pleasures in disastrous portent. Alito actually denies the FRFI standing because, now brace yourself, the White House Office of Faith-Based and Community Initiatives (or NAMBLA,) whose actions promoting religion were called into question by the petitioners, was created by Executive Order and not Congressional action. Thereby skirting that dirty little “Congress shall make no law” problem. Alito, with a bluntness that would make Machiavelli blush, completely dismisses the obvious problem that the entirety of the Executive Office’s funding is appropriated BY CONGRESS.

#2: Wilkie v. Robbins, (7-2, or 9-0 depending on how you want to look at it, Ginsburg and Stephens dissented to parts of the Souter decision. In the end, I tend to see it as Government 2, US Property Owners 0.) Harvey Frank Robbins, or ‘the rich SOB from Alabama’ if you worked for the BLM in the late 90s, owns the High Island Ranch which spans 40 miles of the great state of Wyoming. In March of 1994, the ranch’s previous owner had signed an easement with the government giving them the right to use and maintain South Fork Owl Creek Road within his property, but Robbins was never informed of this easement and the BLM “failed to record it,” so when Robbins took control of the land it was, by Wyoming law, legally free of the easement. One guy at the BLM offices that actually does work caught the error, and called Robbins and demanded a new easement to replace the now defunct one. Robbins refused to grant it outright but indicated a willingness to negotiate. But the BLM reply was a succinct “the government does not negotiate” and what followed could either be characterized as a systematic campaign of harrassment, or the kind of racketeering that only an entity with a monopoly on the legitimate use of force can pull off. Not surprisingly, Robbins sought RICO charges, and asserted his 5th amendment rights. Also not surprisingly, the Court rejected Robbins’ claims, and so did the American people. As Tim Sandefur, an acquaintance of mine, explains at the Pacific Legal Foundation blog (http://eminentdomain.typepad.com/my_weblog/2007/06/robbins-and-ret.html) “The bottom line after the Robbins case is this: federal agents have virtually unlimited power to abuse their otherwise legitimate powers to harass property owners in order to demand that they hand over their land to the government… In this way, Robbins may prove ultimately to be worse than Kelo [v. New London.]” Shudders… Fortunately Justices Ginsburg and Souter found their true liberal streak in their dissent and realized the problem of “death by a thousand cuts.”

… and now the #1 most startling decision that is ruining America: Morse v. Frederick (5-4, duh.) This is the once comical “Bong Hits 4 Jesus” case, which has now resulted in a much less comical nightmare ruling that threatens the very foundation of our education system and portends disaster future the future decisions of a Roberts Court.

For those of you who haven’t heard the case details in brief: In 2002, as the Olympic Torch Relay worked its way through Juneau, Alaska, it passed by Juneau-Douglas High School, which allowed students and staff to watch the event. Just outside of school grounds, on a public sidewalk, but within easy view of the school, 18 year-old high school senior Joseph Frederick showed up late to school and together with friends (predominantly JDHS students) unfurled a 14′ banner that read “BONG HiTS 4 JESUS”. The school’s principal, one Deborah Morse, demanded that the student take down the banner, but when Frederick refused, the banner was confiscated and he was suspended, and the Roberts Court is all cool with that.

Apparently, because the school has policies that say drugs are bad, it can legally censor speech that could possibly be conceived as promoting them. Following that logic, given recent prohibitions against ANY physical contact between students (hugs, high fives, handshakes, etc.) in some US public schools, and the rogue actions of school boards like the one in Dover, PA, we could conceivably see a “HUGS 4 DARWIN” case in the near future… I can’t wait. Seriously, we need to rein in our school boards folks, or better yet get a move on to a free market for education!

Justice Thomas filed a concurring opinion which contains the worst of the Roberts Court first full term:

In my view, the history of public education suggests that the First Amendment , as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment , public schools had become relatively common. If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not. (emphasis added)

Thomas, a black man, acquiesces to the actions of the 19th century courts… yes the same courts that gave us “separate but equal.” He also reinforces his point with a 1915 case in which the Court upheld the legitimacy of a student’s punishment for a speech about fire hazards in a school building. C’mon, he’s making stare decisis look like stare dictis here… bdum bum…

Well I’ve always found the way to follow a dud joke, is a Clarence Thomas quote. This one criticizes the way the Roberts Court is heading better than anyone could from the outside:

“Today, the Court creates another exception. In doing so, we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools. (emphasis added)

Also, http://www.law.cornell.edu/supct/index.html is the link to a great database of Supreme Court happenings, which is one thing that is currently absent from this site.