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June 28, 2007
The Supreme Soaps
By Maggie GallagherThis week, the two most significant Supreme Court decisions -- Hein v. Freedom From Religion Foundation Inc. and Federal Election Commission v. Wisconsin Right to Life Committee -- were decided 5-4.
The addition of Justice Samuel Alito and Chief Justice John Roberts has changed the Supreme Court in critical ways, not only because of their own votes, but because of the magic power they have to pull Justice Anthony Kennedy back from the brink of the liberal bloc. For Kennedy, Justice Antonin Scalia's brisk, piercing and penetrating opinions operate with a kind of reverse magnetism: Kennedy is so personally revulsed by Scalia's rhetorical and intellectual style that Scalia drives him to the other side, for lack of any better option.
One can see the dynamics of the Supremes' soap opera unfold in Hein v. the Freedom From Religion Foundation.
Scalia, the valiant originalist warrior, frustrated by his inability after almost 20 years on the court to change precedents he sees as fundamentally without roots in the history or text of the Constitution, flames ballistic.
You can get the flavor of Scalia's impatient indignation by Alito's gentle but explicit rebuke: "Justice Scalia says that we must either overrule Flast or extend it to the limits of its logic. His position is not '(in)sane,' inconsistent with the 'rule of law,' or 'utterly meaningless.' ... But it is wrong."
At issue in Hein: the right to sue the executive branch for saying pro-religious things in conferences and speeches with which the Freedom From Religion Foundation disagrees. The case turned one of the obscure exceptions to the normal rules of standing the Supreme Court carved out in Flast v. Cohen in 1968 (at the height of the Warren Court's zeal for evolving the Constitution), creating one of those utterly one-way rules for the suppression of speech that uniquely disfavors religious people of all faiths. A secular view is insulated from lawsuits by taxpapers, but any hint from a government official of views favorable to religion (in the eyes of even a single taxpayer) could drag any small district into court for the fun and expensive process of discovery. Talk about chilling effects.
Losing Hein, which sought to include any act or speech of the president or his executive branch under these novel rules, would constitute a full-employment act for the ACLU and other aggressive secularists, and a further suppression of religious-based ideas. The only way that a school (or a President) could avoid constant litigation threats would be to avoid any ideas that might be interpreted by an disgruntled aggressive secularist (with an ACLU lawyer) as related to religion.
Indirect suppression of religious speech and ideas? Fine with four members of the Supreme Court, and most Democrats. Ditto political speech: In FEC v. Wisconsin Right to Life, the four liberal justices (Breyer, Ginsburg, Souter and Stevens) argued that government can criminalize political speech around election time in the interests of something they called democracy. (I wonder if they can hear how much they sound like Venezuela's Hugo Chavez, as he forcibly transfers ownership of the last dissenting television station on the grounds it will benefit The People?)
So bald was the interference with constitutional rights that even the ACLU opposed the government on this one. If the First Amendment means anything, it should mean this: Powerful incumbent politicians do not get to use their power to ban political speech at election time.
President Bush's most lasting legacy is likely the appointment of two justices -- Alito and Roberts -- who are not only committed to our constitutional rights, but who understand something key: how to keep Justice Kennedy's vote on the right side.
