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The Supreme Court’s gang of four

Shortly before the 2004 election, I opined that the most important race to win was the presidential election. One of the reasons was the potential ramifications of Bush being able to make appointments to the U.S. Supreme Court. That fear appears to be turning to reality now.

After winning the election, Bush appointed Chief Justice Roberts and Justice Alito. According to one analysis, if you include agreements in part and in the ultimate judgment in cases decided during the just completed first full term of the Roberts Court, “both the Chief Justice and Justice Alito and Justices Scalia and Thomas agreed in more than nine of 10 cases.” While I don’t claim to be a Supreme Court scholar or an expert in all the jurisprudence discussed below, here’s some of the ramifications of this gang of four this term:

In Thursday’s school desegregation decisions, they conclude that achieving diversity in elementary and secondary eduction is not a compelling government interest. Only Justice Kennedy’s separate concurrence prevented that view — which seems almost a de facto form of the separate but equal doctrine overturned by Brown v. Board of Education — from becoming the law of the land.

In Monday’s free speech decisions, the four essentially say corporations are entitled to the same First Amendment protections as individuals while limiting the individual speech of high school students if it can be construed as an endorsement of drug use (even though in the former decision Roberts said that “[w]here the First Amendment is implicated, the tie goes to the speaker”). Their views now represent the law. While there is some legitimate rationale to and a narrow focus in the “Bongs 4 Jesus” decision, Justice Thomas again showed he is an extremist, suggesting in a concurring opinion that “the Constitution does not afford students a right to free speech in public schools.”

In another decision this week, the gang of four were among five votes concluding taxpayers can not sue to block federal expenditures they claim violate the separation of church and state if the money comes from discretionary funds of the executive branch. In fact, the decision could be read to say that if the Bush White House decided to fund the building of a church, the only remedy is Congress.

While they ended up on the losing side of a 5-4 vote, the gang of four would not have allowed state and local governments to challenge the refusal of the Bush EPA to regulate carbon dioxide and other greenhouse gases from new motor vehicles. The EPA refused to treat those gases as pollutants because, according to it anyway, a connection between those emissions and global warming had not been unequivocally established.

Earlier this term, they were four of the five votes upholding the partial birth abortion ban (an earlier version of which was found unconstitutional by the Supreme Court in 2000), essentially saying Congress can decide what medical procedures are appropriate for a doctor to use. Thomas, joined by Scalia, again used a concurrence to take a position far outside the mainstream and established jurisprudence, saying there is “no basis in the Constitution” for abortion rights.

Remember, this is just the first full term of the Roberts Court and Roberts (52), Alito (57) and Thomas (59) are the youngest members on the Court. It does not bode well.

UPDATE: I can’t resist passing along Jon Swift’s inimitable explication of the desegregation decisions.


In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students.

Justice Clarence Thomas, concurring opinion in Morse v. Frederick

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