Editorial: The U.S Supreme Court's fault line

The Patriot Ledger

There is a troubling pattern emerging on the Supreme Court which should trigger consternation for all citizens who value an open-minded judiciary as they more often hear the phrases "sharply divided" and "5-4 split decision" in conjunction with court rulings.

The latest came Monday in a flood of decisions handed down by the stridently right-leaning Roberts court that, in essence, opens the door for restrictions on speech, allowing more government-sponsored support of religion and gutting the federal campaign finance law in a ruling in favor of a right-to-life advocacy group.

All this comes in the wake of recent rulings poking the first hole in Roe v Wade, coming down strongly on the side of corporations in wage suits and nearly decimating the 30-year-old Clean Water Act which has helped stem the flow of pollution and cleaned up the country's waterways.

In the most recognizable decision handed down Monday, the court's five conservative justices - Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., anthony M. Kennedy, Antonin Scalia and Clarence Thomas - took away the free speech rights of students in the case involving the now-infamous banner "BONG HiTS 4 JESUS."

Since a 1969 decision in another student speech case, the court has held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" but stopped short of giving minors full-blown rights enjoyed by adults if it compromises their safety or security or a school's ability to adequately perform its functions.

In ignoring that precedent, a truly frightening part of Monday's ruling is the continuing emergence of Thomas, who we wish had maintained his early path of radio silence. Thomas said the 1969 decision "is without basis in the Constitution" and, in his concurring opinion, he used his own brand of judicial reasoning and insight that is firmly embedded in the 19th century to make this chilling statement.

"In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools," he wrote.

That is the Thomas so many feared during his contentious confirmation hearing and while his votes over the years had placed him firmly in the right-wing demagogue sector, his writings are beginning to harken back to a whip and buggy time best left in the past.

In the other decisions, the same 5-4 split solidified the court's standing as a conservative Republican rubber stamp. Just last week, the court was one vote away from gutting the Clean Water Act in a suit by a Minnesota developer who was blocked from filling in wetlands to build a shopping mall.

And we trust most everyone by now has read the decision or at least the reports on Kennedy's opinion upholding the ban on late term abortions that was written in the tone of a devout right-to-life member rather than an objective judicial observer.

Split decisions on the court are neither new nor unexpected. According to one study, the court has split 5-to-4 in roughly 21 percent of its decisions in the last three years, not far off from the historical percentage.

But many of those cases both recently and historically were decided with centrist and literalist jurists, such as Sandra Day O'Connor or Hugo Black, empanelled on the bench who brought with them open minds to all arguments. It is the rigid ideology with which many of these new decisions are being entered into the law of the land that should give everyone pause. Rare is the case with political overtones that even the most casual of observers is unable to predict the fault line upon which the conservative and liberal factions will vote.

As we get ready to select our next president, we would do well to look at the appointments of those who held firm litmus tests on issues such as abortion, religion and executive power.

Ask yourself, and then your candidate, do you want a court that is ramrod straight on ideology, regardless of the side it leans on, or do we want a branch of government that will look at 220 years of historic precedent instead of throwing it out the window in favor of entrenched demagoguery. We choose the latter.