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The New York Times
Three Bad Rulings
EDITORIAL,
nytimes.com on the Web, June 26, 2007
The Supreme Court hit the trifecta
yesterday: Three cases involving the First Amendment. Three
dismaying decisions by Chief Justice John Roberts’s new conservative majority.
Chief Justice Roberts and the four others in his ascendant bloc used the
next-to-last decision day of this term to reopen the political system to a new
flood of special-interest money, to weaken protection of student expression and
to make it harder for citizens to challenge government violations of the
separation of church and state. In the process, the reconfigured court
extended its noxious habit of casting aside precedents without acknowledging it
— insincere judicial modesty scored by Justice Antonin Scalia in a concurring
opinion.
First, campaign finance. Four years ago, a differently constituted court
upheld sensible provisions of the McCain-Feingold Act designed to prevent
corporations and labor unions from circumventing the ban on their spending in
federal campaigns by bankrolling phony “issue ads.” These ads purport to
just educate voters about a policy issue, but are really aimed at a particular
candidate.
The 2003 ruling correctly found that the bogus issue ads were the functional
equivalent of campaign ads and upheld the Congressional restrictions on
corporate and union money. Yet the Roberts court shifted course in
response to sham issue ads run on radio and TV by a group called Wisconsin Right
to Life with major funding from corporations opposed to Senator Russell
Feingold, the Democrat who co-authored the act.
It opened a big new loophole in time to do mischief in the 2008 elections.
The exact extent of the damage is unclear. But the four dissenters were
correct in warning that the court’s hazy new standard for assessing these ads is
bound to invite evasion and fresh public cynicism about big money and politics.
The decision contained a lot of pious language about protecting free speech.
But magnifying the voice of wealthy corporations and unions over the voice of
candidates and private citizens is hardly a free speech victory. Moreover,
the professed devotion to the First Amendment did not extend to allowing
taxpayers to challenge White House aid to faith-based organizations as a
violation of church-state separation. The controlling opinion by Justice
Samuel Alito offers a cockeyed reading of precedent and flimsy distinctions
between executive branch initiatives and Congressionally authorized spending to
deny private citizens standing to sue. That permits the White House to
escape accountability when it improperly spends tax money for religious
purposes.
Nor did the court’s concern for free speech extend to actually allowing free
speech in the oddball case of an Alaska student who was suspended from high
school in 2002 after he unfurled a banner reading “Bong Hits 4 Jesus” while the
Olympic torch passed. The ruling by Chief Justice Roberts said public
officials did not violate the student’s rights by punishing him for words that
promote a drug message at an off-campus event. This oblique reference to
drugs hardly justifies such mangling of sound precedent and the First Amendment.
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