Another Controversial Finish

The United States Supreme Court finished its 2006-2007 term this week with a bang. As I mentioned last week, the Court still had some rather controversial cases left to decided as it entered its last week of session. The court did not disappoint . . . at least when it came to creating a controversy. The week started off with the Court holding that students do not have the right to engage in speech that contradicts a school policy against illegal activity. The policy in question was a school's anti-drug policy. The speech in question was a sign with the words "Bong Hits for Jesus" on it. In a 5-4 decision, the majority of the Court concluded that schools have the right to restrict student speech that advocates illegal behavior. In this case, a majority of the Court concluded that the sign was a pro-drug message, even if the student who created the sign didn't intend it to be. Many legal scholars see this as a narrow ruling, but at least three justices on the Court appear to be willing to give schools significantly more power to restrict student speech.

The Court's final decision, handed down yesterday, was every bit as controversial, if not more. The Court, in another 5-4 decision, struck down school policies that used race as a deciding factor in determining where a student would attend school. At issue was a policy intended to create racial balance in schools that resulted in students being bused across town to achieve this racial balance. This scheme had its origins in the landmark Brown v. Board of Education decision, which said that separate schools for blacks and whites could never be equal. While the Court ruling yesterday doesn't overturn Brown or cases that allow for affirmative action, it seems to severely limit government's ability to create diversity by using race as a factor. The Court basically said that the policy in question was not necessary to serve the states compelling interest. What other means the state could have used to create racial balance in its schools is left unsaid by the majority of the Court. The dissenters, on the other hand, claim the majority ignored past precedent and basically overturned past precedent without expressly doing so. This decision appears to be part of a larger strategy to limit the reach of past precedent that many conservatives believe were incorrectly decided, without actually overruling the precedent.

Interesting times at the United States Supreme Court and surely proof that the judicial appointments made by President Bush two years ago have made an enormous impact on the direction of the Court.

The Final Eight

Entering it's last week of 2006-2007 term, the United States Supreme Court still has eight cases left to decide. And as usual, they are some of the most controversial cases on the docket. Students in my Conversation and Presentation Skills class know that the court is trying to figure out whether a student can be punished for holding up a sign saying "Bong Hits for Jesus" at an event held outside of the school. This case has the potential of redefining how the court deals with the free speech rights of students. But some of the other cases left to decide are equally interesting. For instance, the Court must still determine whether schools can take race into account when assigning students to schools in a given school district. The practice has been used for decades to make sure there is some kind of racial balance in schools. As students in my Constitutional classes know, the issue how race classifications operate under the Equal Protection Clause has been controversial since the adoption of the 14th Amendment to the Constitution. Also still on the undecided list is a case dealing with the death penalty and mentally ill defendants, as well as the ability to bring Establishment Clause challenges, as the Court looks at what kind of "harm" one must show to be a plaintiff in a challenge based upon the Establishment Clause. The issues involved in these cases touch upon some of the most hotly debated issues in America, and many people are anxiously awaiting this last week of Court decisions.

Electing Judges

The New York Times has an interesting piece on a new study looking into the impact of campaign financing on judicial election campaigns. The study found that an average of $244,000 was spent on each judicial campaign. That's the average. You can be sure the campaigns for state supreme courts cost much more. Take Alabama's Supreme Court race for instance. According to the Times, the Alabama contest was the second most expensive in the history of the nation, with over 17,000 radio and televisions being run throughout the state during the campaing. 17,000! Take a look at the article for interesting facts on spending in judicial campaigns.

Symbols Aren't Always Speech

American Constitutional Law students learn that symbols are also considered speech that is protected by the Constitution's First Amendment. But one must be careful when dealing with symbols, as a biker club in California recently found out. For symbols to be speech they must communicate a reasonably understandable message. What does this mean exactly? Well for starters the person wearing the symbol must intend the symbol to express a thought or idea. Second, a reasonable person must be able to at least remotely understand the message being expressed.

A recent case in California, we will call it the California biker case, dealt with a prohibition of motorcycle club insignia and gang colors at something called the Gilroy Garlic Fair. The bikers in question wore a club symbol (pictured above) showing a skull, wings and a top hat; and were forced to leave the fair for violating the fair's aforementioned policy. They sued claiming the club symbol was speech protected by the First Amendment. They lost because not even the members of the biker club could agree on what the symbol meant. The court reasoned that if the bikers themselves didn't know what message was being expressed by wearing the symbol then how could the symbol be speech.

40 Years Ago Today

It was forty years ago today that the United States Supreme Court struck down laws banning blacks and whites from marrying. The now famous Loving v. Virginia case was brought on behalf of an interracial couple who were thrown in jail for violating Virginia law. They were eventually forced to move from the state until the Supreme Court finally stepped in to say that the practice of banning interracial marriages, which was still law in 17 states at the time, violated the Constitution's Equal Protection Clause. The Associated Press has a fascinating short piece on the history of the case. It's worth a read.

Independent Judges

There is a fierce debate currently being waged in the United States over how independent judges should be. As students of common law learn, the common law judge both interprets law and makes law. But there is a clear distinction between the two. When the legislature or constitution speaks to an issue, it the judge's job to interpret what the law or provision means. So what happens when judges, while interpreting law, end up doing so in such a way that actually looks more like lawmaking? In America, there is a movement to limit the ability of judges to interpret law in a manner that is inconsistent with the intent of the drafters of the law or the Constitution. But some "legal heavywieghts" are weighing in on this issue opposing efforts to place constraints on judges. One such advocate of "judicial independence" is retired Supreme Court Justice Sandra Day O'Connor, who recently gave a speech at the University of Tulsa on this issue. O'Connor's comments in the Tulsa World are worth a look.

Separation of Church and State

In our Constitutional Law class we will soon be discussing the religion clauses of the First Amendment. One of the more controversial interpretations of the First Amendment's Establishment Clause is that government and religion should be separate, or as Thomas Jefferson wrote, there should be "a wall separating church and state." The are many arguments in support of this interpretation of the Establishment Clause, but the one that is most convincing to me is that we should not allow government and religion to mix because America is a religiously diverse country and some religions will be given an advantage over others. For instance, if we allow prayer in public school, whose prayer should we allow? Christian? Jewish? Muslim? Hindu? If we simply allow the majority to decide then surely those practicing a minority religion will feel left out.

A nice illustration of this is currently being debated in Indonesia, which is predominately Muslim, but also has majority Christian areas. Many areas within Indonesia base their laws upon the Koran, also known as Sharia law. For instance, in some parts of the country all women, even those who are not Muslim, must abide by the Sharia law dress code for women. In response to this, politicians in a Christian area of the country are proposing basing their laws on the Bible. But is this really the best way for a diverse country to operate? Is it preferable to have a patchwork of relgious based laws across the country? Or is the better solution to simply keep religion and government separate, as Thomas Jefferson proposed at the birth of the United States.