High Court Rulings Show Judicial Divide

The U.S. Supreme Court, with two new appointees by President Bush, is showing itself to be far more conservative and more deeply divided than in the recent past – despite Chief Justice Roberts' talk of consensus. Four out of five cases decided June 25 were 5-4 rulings.

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We have learned a little more about what we may say and about the court that decides what we may say. Among the decisions released yesterday, the Supreme Court ruled on the First Amendment. People who want to influence elections are in luck. Students who want to be provocative are not. Those decisions were made by a sharply divided court, and in each case the vote was five to four with the same alignment of liberals and conservatives.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Despite Chief Justice Roberts' talk of consensus, the court this term is as divided as at any time in recent memory. In the last decade, only one other year has had numbers like this, roughly 30 percent of all cases decided by five to four votes. Yesterday was no exception. Of the five cases decided, four were 5-4. And just as in every other 5-4 case this term, Justice Anthony Kennedy was in the majority.

Of yesterday's crop, certainly the most important was the court's decision effectively nullifying a key provision of the McCain-Feingold campaign finance law, the same law upheld by the court when it had a different membership just four years ago. At issue was a provision that bars the use of corporate or union general treasury funds to finance what campaign reformers call sham issue ads.

These are ads broadcast shortly before an election aimed at helping or hurting a named candidate and financed with money that would be illegal for candidates themselves to receive. To be exact, the ads cannot be financed with unlimited, undisclosed, direct contributions from corporations and unions. Four years ago, the Supreme Court upheld that ban because the court said Congress had ample reason to limit the influence of big money in elections.

But yesterday the court, with a new membership, cut the legs out from under that ruling. Three of the justices - Scalia, Kennedy and Thomas - would all have overruled the previous decision outright. But Chief Justice John Roberts and fellow Bush appointee Samuel Alito said that was unnecessary. Instead, Robert said, that if any ad could reasonably be viewed as talking about an issue, it fell into the realm of core speech protected by the First Amendment. In all instances, he said, speech must be given the benefit of the doubt. The tiebreaker goes to the speaker, not the censor. The decision was a major blow to campaign reform efforts. Supreme Court scholar Tom Goldstein.

Mr. TOM GOLDSTEIN (Attorney): Today's decision really does say we may end up having campaign finance regulation in name but not in practice, because there are going to be enough free speech loopholes in the law that you can get around almost anything.

TOTENBERG: Loyola Law School professor Rick Hasen, an expert in election law, says the result will be concrete in the upcoming election.

Professor RICK HASEN (Loyola Law School): What you will see are a lot more ads that look like those ads we saw in the 1990s - call candidate X and tell him what you think of his plan to gut Medicare. Those kinds of issue ads are coming back and they're going to come back with a vengeance because that ad can be funded with corporate and union money.

TOTENBERG: Georgetown law professor Martin Lederman points out that the court for the first time is now treating corporations just as it treats individuals when it comes to free speech rights.

Professor MARTIN LEDERMAN (Georgetown University): The court is making a sea change in the way that it is treating the First Amendment rights of corporations.

TOTENBERG: That sentiment was echoed in a passionate dissenting opinion written by Justice David Souter. The court majority, he said, has effectively overruled a law that Congress enacted to deal with the problem that's been brewing for over a century. Corporations and unions assemble a lot of money, and money has strings attached. People know that, he said, and this kind of campaign spending has bred cynicism about democracy. After this court decision, said Souter, Congress's attempt to deal with the problem is a dead letter.

Outside of the election context, however, the court was more circumspect about free speech rights yesterday. Forty years ago, in a case involving a Vietnam War protest, the Supreme Court ruled that a student's right to free speech does not stop at the schoolhouse door. But yesterday the court said that if a student's speech can reasonably be seen as advocating drug use, it is not protected. The decision came in the case of Joseph Frederick, a high school senior, who standing on a public street in Juneau, Alaska at a school-endorsed Olympic torch parade unfurled a banner that said Bong Hits 4 Jesus.

Mr. JOSEPH FREDERICK (Student): And it was certainly not intended as a drug or religious message. I conveyed this to the principal by explaining that it was intended to be funny, subjectively interpreted by the reader, and most importantly an exercise of my inalienable right to free speech.

TOTENBERG: The principal didn't see it that way and suspended Frederick for 10 days. Frederick went to court, but yesterday a divided Supreme Court said that the principal could reasonably have viewed the banner as advocating drug use and so Frederick was out of luck.

Finally yesterday, the court ruled that ordinary taxpayers cannot challenge a White House initiative that promotes federal grants to religious charities. The challenge to President Bush's faith-based initiative was brought by taxpayers who claimed that it violated the constitution's required separation of church and state. Now, ordinarily taxpayers who don't like a federal spending program can't challenge it in court because they can't show any individual injury. But the Supreme Court 40 years ago made an exception for challenges to legislative appropriations for programs that promote religion. And many conservatives have openly pined to overturn that decision.

Yesterday they fell short but in the end they may have won the war. The court ruled that when the president uses executive branch discretionary funds to promote religion, that is not the same as a specific legislative appropriation and the president's action cannot be challenged in court by taxpayers.

Again, Supreme Court scholar Tom Goldstein.

Mr. GOLDSTEIN: The faith-based case shows, I think, that the Supreme Court is going to be much more hostile to notions that you have to separate church and state.

TOTENBERG: Constitutional law experts said yesterday's ruling would seem to allow a president to favor any religious group as long as Congress gives him broad discretionary authority and spending.

Nina Totenberg, NPR News, Washington.

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