The Supremes

By Douglas W. Kmiec
     
      Precedent Rules in the Roberts Court
      There is much to note about John G. Roberts Jr.'s second year as chief justice, but the importance of holding fast to precedent figures most prominently. Of course, if you were on the losing side of the 5?4 cases in which a precedent was not extended?or, as some might complain, not applied?the view would be different. It may be argued that to applaud restraint resulting in rulings that approve a limit on abortion, curtail the use of racial preference, and restrict student speech about drugs merely gives approval to the slightly more conservative direction of Justice Samuel Alito substituting for Justice Sandra Day O'Connor. In these times of sharp partisanship, it is perhaps too much for the general observer to accept these outcomes as a good faith observance of the separation of powers. But that is what it is. A closer look reveals why.
     
      WE TRY HARDER
      Two race cases the Court decided together were probably the most important of last term. (Parents Involved in Comty. Sch. v. Seattle Sch. Dist. No. 1 and Meredith v. Jefferson County Bd. of Educ., 127 S. Ct. 2738.) In both, the school districts were using race to achieve a balance in the schools that more or less mirrored the demography of the surrounding area. Neither district was under court order to do this. Thus, the cases were strikingly different from Brown v. Board of Education of Topeka (347 U.S. 483 (1954)), which rectified the vestiges of the official and odious segregation of the races.
      In one sense, the school districts' voluntary efforts at racial balancing were laudable, because they manifest concern to rectify divisions that still weaken community. However, the method used to balance the races also meant that individual children would be turned away from the public school of their choice based on crude categorizations?such as white and nonwhite?that ignore the cultural richness of ethnic differences. To Chief Justice Roberts and the plurality, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Justice Anthony Kennedy did not disagree, but he also did not want to entirely foreclose race-conscious measures that did not pose individualized burdens in addressing the reality of resegregated schools.
      The Roberts position is principled. The Kennedy position is compassionate. Together they form a coherent piece, and are more defensible and in keeping with the promise of Brown than the dissents by Justices John Paul Stevens and Stephen Breyer?which would have weakened the commitment to nondiscrimination and overread the precedent in Grutter v. Bollinger (539 U.S. 306 (2003))?allowing for diversity in higher education. The chief justice, with an assist from Kennedy, chose neither path. Score 1 for precedent.
     
      A MIND IS A TERRIBLE THING TO WASTE
      Joseph Frederick of Juneau, Alaska, held up a sign at a high school event that read "Bong Hits 4 Jesus." The Ninth Circuit?with its reversal record of 29 percent of the Supreme Court's docket and 18 of 21 cases overturned?held that the principal at Frederick's school should be liable for money damages for taking down the sign. The Court reversed. (Morse v. Frederick, 127 S. Ct. 2618.) The chief justice opined that it was reasonable to perceive the bong message as advocating illegal drug use, and that school officials could exclude such speech without violating the First Amendment. Justice Clarence Thomas argued that students should have no free speech rights in the schoolhouse. But the Court affirmed its previous ruling in Tinker v. Des Moines Independent Community School District (393 U.S. 503 (1969)) that students do not "shed their constitutional rights of speech or expression at the schoolhouse gate." Score 2 for precedent.
     
      CAN YOU HEAR ME NOW?
      The justices, in Federal Election Commission v. Wisconsin Right to Life (127 S. Ct. 2652), held invalid a section of the McCain-Feingold campaign-finance reform law as applied, making it a crime for corporations to use general treasury funds to pay for candidate advertisements airing within 30 days of a primary election or 60 days of a general one. Wisconsin Right to Life, a nonprofit corporation, ran television commercials opposing filibusters blocking judicial nominees. The spots urged voters to contact U.S. Senators Russ Feingold and Herb Kohl of Wisconsin to oppose the filibuster. Feingold was up for reelection.
      According to Chief Justice Roberts, the ads were not the functional equivalent of advocacy for a candidate. Moreover, he opined that in the future, the Federal Election Commission should only prevent ads from being heard "if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Concurring in the judgment, Justice Antonin Scalia, along with Kennedy and Thomas, would have tossed aside the part of McConnell v. Federal Election Commission (540 U.S. 93 (2003)) that had validated the particular campaign-finance limitation. The chief justice, in deference to Congress's concerns with the domineering power of corporate money in elections, declined to go that far. Score 3 for precedent.
     
      IT TAKES A LICKING, AND KEEPS ON TICKING
      In Hein v. Freedom From Religion Foundation (127 S. Ct. 2553), the Court found that the much-battered precedent in Flast v. Cohen (392 U.S. 83 (1968))?permitting a somewhat inscrutable exception for taxpayer standing in Establishment Clause cases?ought not be extended to the president's discretionary decision to include faith-based groups in the provision of social services. Justices Scalia and Thomas would have overruled the precedent altogether, reasoning that it distorts the separation of powers and often results in unnecessary religious exclusion from evenhanded inclusion in public programs. Justice Alito resisted, even as he likely agreed as a policy matter. Score 4 for precedent.
      In Gonzales v. Carhart (127 S. Ct. 1610 (2007)), which upheld the federal Partial-Birth Abortion Ban Act, the Court did not overrule Stenberg v. Carhart (530 U.S. 914 (2000)), which invalidated an almost identical statute. Score 5. Congress wrote a more careful definition of the prohibited practice following the instruction of Stenberg, and while medical personnel were in disagreement, the Court gave the benefit of the doubt to the interest of protecting prenatal life.
      Also of specialized interest among the Court's opinions this past term may be the exclusion of nonparty evidence of harm in the calculation of punitive damages (Philip Morris v. Williams, 127 S. Ct. 1057 (2007)); strict enforcement of Congress's intended statute of limitations in Title VII lawsuits (Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007)); and another chance for a possibly delusional death row inmate to prove he is too insane to be put to death. (Panetti v. Quarterman, 127 S. Ct. 2842.)
     
      Douglas W. Kmiec (douglas.kmiec@pepperdine.edu) is the Caruso Family Chair and a professor of constitutional law at Pepperdine University School of Law.
     

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