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A few things are certain about the U.S. Supreme Court’s decisions this term in the area of civil rights. It is obvious, for example, that the court is split in a sharp 5-4 divide that highlights the absence of retired Justice Sandra Day O’Connor. It is also clear that a powerful new conservative majority has emerged, led by Chief Justice John G. Roberts Jr. and solidified by Justice Samuel A. Alito Jr. And, finally, it is apparent that this new majority succeeded in significantly shifting the law in a number of important cases involving the freedom of speech, separation of church and state, equal protection and privacy. What is less certain from these opinions, however, is the true extent of their reach. Court watchers, and even the justices themselves, are debating whether this term’s decisions were exercises in judicial modesty or a sweeping overhaul of important precedents. In other words, did the justices simply interpret the laws narrowly, thereby bringing about only incremental changes? Or are the effects of these rulings more seismic? Did the new majority manage to effectively, yet stealthily, undermine or nullify numerous historic decisions? First Amendment cases At the end of its term, the court handed down three significant First Amendment decisions on the same day � two involving the freedom of speech and a third dealing with the establishment clause. Roberts authored the opinions of the court in both of the free speech cases, Morse v. Frederick, 127 S. Ct. 2618 (2007), and Federal Election Commission v. Wisconsin Right to Life Inc., 127 S. Ct. 2652 (2007). In one he favored the speaker and in the other he came down on the side of the censor. In both cases, other justices questioned whether he was being faithful to prior court decisions. Morse involved an Alaskan high school student, Joseph Frederick, who unfurled a banner that read “Bong Hits 4 Jesus” during a televised event for the Olympic Torch Relay. Moments later, the school principal confiscated the sign and suspended the student for 10 days. The student sued, alleging a violation of his First Amendment rights, and the court sided with the principal. At the center of this case is the 1969 decision in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), which famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In his opinion, Roberts reiterated this statement, yet he also concluded that the Tinker rule � that student speech is constitutionally protected unless it causes a “substantial disruption” � is not always controlling. Citing the seriousness of drug abuse by students, the court declared that school officials may restrict any student speech that reasonably can be interpreted to advocate illegal drug use. Alito filed a concurring opinion, in which Justice Anthony M. Kennedy joined, stressing the narrowness of the court’s ruling. The chief justice’s decision is in keeping with past decisions on student speech and should not be read, Alito wrote, to allow censorship of speech “that can plausibly be interpreted as commenting on any political or social issue.” 127 S. Ct. at 2636. In dissent, however, Justice John Paul Stevens argued that the court was doing more damage to Tinker than it was acknowledging and was inflicting “serious violence” on the First Amendment rights of students. The court, Stevens wrote, trivializes the “cardinal principles upon which Tinker rests.” Id. at 2644, 2645. The second free speech case, Wisconsin Right to Life (WRTL), involved a First Amendment challenge to a key provision of the McCain-Feingold campaign finance legislation. The provision forbids any incorporated entity from using general funds to pay for “electioneering communication.” It defines that term in a manner that could include “express advocacy” advertisements, which means they directly promote a particular candidate’s election or defeat, as well as “issue advocacy” ads, which deal with public issues generally but also may mention a candidate. To decide this case, the court had to address a prior court decision on the exact provision. Three terms ago, it upheld the provision against a facial challenge in McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). In McConnell, the court held that limiting “issue advocacy” is unconstitutional, but restrictions on express advocacy or “the functional equivalent of express advocacy” are permissible. In WRTL, however, five justices found the provision to be unconstitutional as applied to three specific advertisements. In a part of his opinion joined only by Alito, Roberts narrowly interpreted McConnell’s phrase “functional equivalent of express advocacy” as including only ads that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The most speech-protecting standard is required, he concluded, because in free speech cases “the tie goes to the speaker, not the censor.” 127 S. Ct. at 2655, 2669. Roberts’ interpretation, however, faced strong opposition not only by the dissenters, but also by other members of the majority � all of whom argued that the chief justice was effectively overruling McConnell. Justice Antonin Scalia concurred only in part, joined by Kennedy and Justice Clarence Thomas, and submitted that McConnell should be expressly overruled. He called the chief justice’s attempt to distinguish McConnell “unpersuasive,” “indefensible” and a “substantial” change in the law. He charged that such “faux judicial restraint is judicial obfuscation.” Id. at 2684 n.7. In a dissenting opinion read from the bench, Justice David H. Souter agreed with Scalia that McConnell was “effectively” overruled, although, he found it “unjustifiably” overruled. Writing for the four dissenting justices, Souter contended that the regulation of WRTL’s ads was constitutional under McConnell and stated that the “Court (and, I think, the country) loses when important precedent is overruled without good reason.” Id. at 2704. The final First Amendment case involved the right to bring challenges to federal spending programs that potentially violate the establishment clause. In Hein v. Freedom From Religion Foundation, 127 S. Ct. 2553 (2007), the court addressed a challenge to the establishment of the White House Office of Faith-Based and Community Initiatives. The precise question before the court was whether the plaintiffs had standing solely as taxpayers to challenge the program as violating the separation of church and state. Once again, the justices were in strong disagreement over how to handle a significant prior ruling. While the court has long held that taxpayer status alone is insufficient to provide a plaintiff with standing, it carved out an exception for some suits that allege establishment clause violations in Flast v. Cohen, 392 U.S. 83 (1968). The question before the court in Hein was whether the Flast exception applied in this case. In another splintered 5-4 decision, the court held that the taxpayers did not have standing under these circumstances. There was no majority opinion, and Alito authored a plurality opinion that was joined by Roberts and Kennedy. The Flast exception, Alito wrote, applies only to expenditures resulting from congressional mandate or appropriation and not to discretionary actions by the executive branch. This rule, he contended, neither extends nor overrules the Flast exception, but rather “leave[s] Flast as we found it.” Id. at 2572. Much as he had in WRTL, Scalia again took his conservative colleagues to task for failing to overrule explicitly the Flast decision, which he called “disreputable” and “damaged goods.” Joined by Thomas, Scalia accused the plurality’s attempt at a “minimalist approach” as leading to “utterly meaningless distinctions” between this case and Flast. Honoring past precedent, he concluded “requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.” Id. at 2584. The four dissenters again shared some common ground with Scalia. In dissent, Souter agreed that the distinction between congressional and executive spending was “at once arbitrary and hard to manage” and that there was “no basis for this distinction in either logic or precedent.” Id. at 2586, 2584. Equal protection One of the court’s most highly watched cases of the term involved an equal protection challenge to the use of race by two public school districts when determining school assignments. The case, Parents Involved in Community Schools v. Seattle School District No. 1; Meredith v. Jefferson County Board of Education, 127 S. Ct. 2738 (2007), was brought by parents of white students who were not assigned to their preferred schools. They challenged the school districts’ plans as racially discriminatory because the schools used race as a factor or tiebreaker in making school assignments for a small number of students. The school districts, however, contended that the plans were necessary to increase student diversity and to avoid school segregation that resulted from racially divided housing patterns. In yet another 5-4 decision, the court ruled in favor of the parents. Writing for the majority, Roberts concluded that even if the school districts’ interests in diversity and avoiding segregation were compelling, the school-assignment plans were not narrowly tailored as constitutionally required. Looming over this case was the court’s landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954). In a part of the opinion joined only by a plurality of four justices, Roberts contended that he was following the court’s decision in Brown. That case, he argued, dictated that students could not be told “where they could and could not go to school based on the color of their skin.” 127 S. Ct. at 2768. Kennedy did not join this portion of the chief justice’s opinion. He instead wrote a separate concurring opinion, which he read from the bench. The proposition that the Constitution requires schools to “accept the status quo of racial isolation in schools,” Kennedy wrote, “is profoundly mistaken.” Id. at 2791. He concluded, however, that there were race-conscious alternatives to these plans that would pass constitutional scrutiny. In another passionate opinion read from the bench, Justice Stephen G. Breyer wrote for the four dissenting justices. In his 77-page opinion, Breyer accused the plurality of doing significant harm to the Brown decision. The plurality’s decision, Breyer wrote, “reverses course and reaches the wrong conclusion” and in the process “undermines Brown‘s promise of integrated primary and secondary education that local communities have sought to make a reality.” Id. at 2800. Stevens also wrote and accused Roberts of “rewrit[ing] the history of one of this Court’s most important decisions.” Id. at 2798. Noting that the court “has changed significantly” since he joined it in 1975, Stevens stated that the court then was “more faithful to Brown and more respectful of our precedent than it is today.” Id. at 2800. Privacy Finally, earlier in the term the court handed down a 5-4 decision in the high-profile privacy case of Gonzales v. Carhart, 127 S. Ct. 1610 (2007). This case pitted a woman’s right to terminate a pregnancy against a federal law that criminalized a second-trimester procedure that opponents refer to as “partial-birth abortion.” The court upheld the law, making it the first time the court has sanctioned a law banning a specific abortion procedure. As with all the preceding cases, a prior decision by the court was at the heart of the debate � this time the 2000 case of Stenberg v. Carhart, 530 U.S. 914 (2000). And, again, the justices were sharply divided in their views on what the court’s prior decision dictated. In Stenberg, the court invalidated a similar Nebraska law in part because the state law failed to provide an exception for the preservation of the health of the mother. The federal ban at issue in Gonzales also did not contain an exception for the health of the mother. Writing for the majority, Kennedy contended that upholding the federal ban was consistent with Stenberg because the federal ban is “more specific” and “more precise” than the invalidated Nebraska law. 127 S. Ct. at 1619. As for the lack of an exception for the mother’s health, Kennedy concluded that there is “documented medical disagreement” on the need for the procedure. In light of this “medical uncertainty,” he stated that the court should defer to congressional findings that the procedure is morally wrong and “never medically necessary,” Id. at 1636, 1624. On behalf of the four dissenters, Justice Ruth Bader Ginsburg read her opinion from the bench. She called the court’s opinion “alarming,” “bewildering” and filled with “flimsy and transparent justifications” for upholding the ban. Id. at 1641, 1646. She disputed the court’s conclusion that there is medical uncertainty regarding whether a need exists for the procedure. Instead she argued that the “differently composed” majority was “retreating from prior rulings” and “overriding fundamental rights.” Id. at 1652, 1641, 1647. In each of these cases, the justices revealed that they are sharply divided � not only about the ultimate outcome but also about the proper treatment of precedent. Only time will tell exactly what the new Roberts majority accomplished this term. But as lower courts and future Supreme Courts interpret and apply these decisions, it eventually will become clear whether they were true exercises of judicial modesty or more momentous shifts in core areas of civil rights. Until then, it is apparent that there will be more strong debate from the bench about where the court has been on these issues as well as where it is going. Sonja R. West is an assistant professor of law at the University of Georgia School of Law, where she teaches constitutional law and media law. She is a former law clerk to Justice John Paul Stevens. She filed an amicus brief for the Student Press Law Center, et al., on behalf of the respondent in Morse v. Frederick, one of the cases discussed in this article.

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