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Roberts's rule: Conservative but incremental

(FILES) This29 October 2006 file photo s
The US Supreme Court in Washington, DC, file photo.Mandel Ngan / AFP - Getty Images FILE
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In Monday's Supreme Court rulings, Chief Justice John Roberts clearly demonstrated he is the conservative leader of a conservative-leaning court.

In two of the court's high-profile cases, Roberts showed he will take an incremental approach to curbing some of the court's precedents.

The chief justice wrote the majority opinion in two cases, both involving the First Amendment right to free speech; one on the regulation of campaign ads, the other on a high school student’s unauthorized banner.

Perhaps giving him some political cover, Roberts had two uncompromising conservatives on his right flank — Justices Antonin Scalia and Clarence Thomas, who called for drastic action — simply over-ruling two of the high court's precedents.

Despite grumbling from Scalia and Thomas that Roberts decisions didn't go far enough, the chief justice assembled a five-justice majority in the two First Amendment cases.

He even got a sixth vote from one of the liberal wing, Justice Stephen Breyer, who concurred on one decision.

When can TV ads be banned?
In a case testing whether the 2002 campaign reform law could bar certain types of TV ads, Roberts supported the First Amendment right of a Wisconsin Right to Life group to air ads urging two senators to oppose the filibustering of judicial nominees.

The campaign reform law had banned certain TV ads because they were paid for with the non-profit group’s general treasury funds, referred to a specific candidate for public office in an upcoming election, and would have aired in the law's 30-day “blackout period” prior to the primary election.

The candidate in question: Sen. Russ Feingold, D- Wisc., co-sponsor of the 2002 law.

“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Roberts wrote. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

But Scalia, in his concurring opinion, said the court ought to have gone further and overturned part of its 2003 McConnell decision, which had upheld the campaign finance law.

After all, Scalia said, "This Court has not hesitated to overrule decisions offensive to the First Amendment... Overruling a constitutional case decided just a few years earlier is far from unprecedented." Thomas and Justice Anthony Kennedy joined Scalia in his concurrence.

But writing on the legal blog, SCOTUSblog, constitutional scholar Prof. Richard Pildes of the NYU School of Law, wrote that the ruling “accomplishes much the same result as would a formal overruling” of the court’s decision in 2003 which had upheld the McCain-Feingold law.

Vehemently dissenting in the campaign finance case, Justice David Souter said, “After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena" will be "open to easy circumvention.”

But, he added, “The understanding of the voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain. The facts are too powerful to be ignored, and further efforts at campaign finance reform will come.”

The campaign finance ruling drew clashing reactions from Sen. John McCain, R- Ariz., a co-sponsor of the 2002 law, and one of his rivals for the 2008 GOP presidential nomination, Mitt Romney.

McCain said in statement that Monday’s decision “does not affect the principal provision of the Bipartisan Campaign Reform Act, which bans federal officeholders from soliciting soft money contributions for their parties to spend on their campaigns.”

But Romney exulted that “Today's decision restores, in part, to the American people a right critical to their freedom of political participation and expression.”

In a case arising from a Juneau, Alaska high school student’s unfurling of a “Bong Hits 4Jesus” banner at a school-supervised event, Roberts wrote the majority opinion which held that the school principal’s disciplining of the student did not violate his First Amendment rights.

The principal, Deborah Morse, “thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one,” wrote Roberts.

If she had failed to act, Roberts said, it would have sent “a powerful message to students in her charge… about how serious the school was about the dangers of illegal drug use.”

Taking a more cautious line, Alito wrote a concurring opinion which explained that it was only because “speech advocating illegal drug use poses a threat to student safety” that he was willing to vote on Morse's side, and against the student, Joseph Frederick.

Alito made a point of noting when it came to political speech, students had broad First Amendment rights, as set forth in the court's landmark 1969 decision, Tinker v. Des Moines Independent Community School district.

The Tinker decision, written by liberal Justice Abe Fortas, upheld students' right to wear black armbands in protest of the Vietnam war.

“The public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits,” he wrote.  

Thomas seeks to overturn 1969 precedent
But the incrementalism of Roberts and the caution of Alito didn't set well with the outlier on the court, Justice Clarence Thomas.

In his concurrence to the “Bong Hits 4 Jesus” ruling, Thomas said the court should simply overturn the Tinker ruling.

As he often does, Thomas argued for a return to the original understanding of what the First Amendment meant. "As originally understood, the Constitution does not afford students a right to free speech in public schools," he said.

“Early public schools gave total control to teachers, who expected obedience and respect from students,” he noted.

Thomas said if parents found rules imposed by administrators on students too strict, “They can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.”

No legal standing to sue
In the third big case handed down Monday, Alito wrote for the majority that taxpayers did not have legal standing to file a suit challenging Bush’s Faith-Based and Community Initiatives program on the ground that it violated the Establishment Clause of the First Amendment.

“The Supreme Court just put a big dent in the wall of separation between church and state, and a big smile on Pat Robertson’s face,” commented Ralph Neas, head of People for the American Way, in response to that decision.

“Today’s ruling will make it more difficult for citizens whose tax dollars are being unlawfully spent to subsidize religion to bring a complaint in court,” he said, calling the ruling “a wake-up call to Americans about the importance of the Court and future nominees.” Neas and his group opposed the confirmation of both Alito and Roberts.

The three high-profile decisions handed down Monday were also significant in that the "swing vote" on the high court, Justice Kennedy, sided with the conservative wing in each ruling.

The dissenting justices were almost the same in all three big decisions announced Monday.

In the campaign finance case and the decision on taxpayer standing to challenge faith-based initiatives, the dissenting justices were Breyer, Souter, John Paul Stevens, and Ruth Bader Ginsburg, likewise in the faith-based initiatives decision.

In the Alaska high school case, Stevens, Souter and Ginsburg dissented with Breyer concurring in part and dissenting in part.