The more than 20,000 people who were following SCOTUSblog's live-blogging of today's cases did not, as you probably know by now, get the health care ruling many of us were stressed out about. There were, however, some other major rulings that deserve some attention. Among other things, they illustrate that presidential elections matter a great deal.
This isn't to say that the Supreme Court always divides along ideological lines. One of today's big cases involved the question of whether the Federal Communications can issue regulations fining networks for broadcasting "fleeting expletives" and "momentary nudity." The Court unanimously ruled that the regulation could not be applied against networks in specific cases. But contrary to some initial reports it achieved unanimity the way it often does—by ducking the important substantive issue. The Court did not rule on First Amendment grounds but instead said that the due process rights of the networks were violated because they were not given adequate notice. The question of whether hefty fines can be levied against broadcasters who broadcast curse words or the side of a woman's breast without violating the First Amendment remains unanswered. Justice Ginsburg correctly objected to this evasion in her brief concurrence, correctly noting that the key precedent excluding broadcast networks from crucial First Amendment protections "was wrong when it issued" and "bears reconsideration."
Two other major rulings today, however, illustrate the importance of partisan and ideological divides on the Court. Dorsey v. U.S. is a case that arose from attempts by Congress to correct the vastly disproportionate sentences given to possessors and distributors of crack cocaine (as opposed to powdered cocaine). The crack/powder disparity was particularly problematic because it disproportionately burdened African-Americans. The question the Court addressed was whether the less disproportionate sentence (which reduce the crack/powder disparity from 100-1 to 18-1) applied to those who committed an offense before the new guidelines took effect but were not sentenced until afterwards.
In a 5-4 decision among ideological lines—with the Court's most moderate Republican, Anthony Kennedy, joining the Court's four Democratic appointees—the Court logically held that the new guidelines did apply retroactively in these cases. Breyer's majority opinion, reading the new guidelines in the context of the objectives of the Fair Sentencing Act, concluded that Congress must have intended them to apply to people who had not yet been sentenced:
A contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not enacted the Fair Sentencing Act at all.
Justice Scalia's dissent, joined by the three other Republican appointees, was atypically restrained, and it's telling that even Scalia was not willing to defend the crack/powder disparity on the merits. "The mischief of the Court’s opinion," argues Scalia, "is not the result in this particular case, but rather the unpredictability it injects into the law for the future." But this is not convincing; the standards used by the majority are logical and not vague or unclear, and there's nothing unusual about assessing Congress's legislative objectives when construing statutory language. To consign a group of defendants to grossly disproportionate sentences demands more compelling arguments than Scalia provides.
Another important case today also fell along ideological lines, although in a more complex way (with two of the Court's more liberal justices joining the judgment of the Court's Republican appointees but not the reasoning.) Going far beyond what was necessary to decide the case at hand, the majority in Knox v. SEIU held that when public-sector unions levy a special assessment it must be done on an "opt-in" basis (requiring affirmative consent) rather than an "opt-out" basis (which allows people to not to pay an assessment related to political action after being given notice.) The idea that the First Amendment requires an opt-in procedure is such radical policy-making that, as Justice Sotomayor argued in her concurrence, that the argument was not even made by the individuals bringing the challenge to the SEIU's actions, who "did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution." As reflected by the fact that Sotomayor and Ginsburg concurred in the judgment, the outcome of the case is more defensible than the reasoning.
The SEIU did not provide members with the usually required notice to opt-out although the special assessment was for political purposes, and while for the reasons discussed by Justice Breyer it's not clear that this was illegal it's a reasonable judgment. But to go far beyond the narrow issue of requiring notice and to require an revenue-reducing opt-in requirement that the petitioners did not even ask for reflects a simple hostility to labor on the part of the conservative faction of the Roberts Court. It also reflects a shell game on the part of the Roberts Court, which cites the ability of labor unions to participate in the political process when defending pro-corporate rulings, but then invents new First Amendment law to undermine labor participation.
Alito's opinion in Knox looks even worse when compared to the ruling in the FCC case. In the latter, and without the protest of a single one of the Court's Republican appointees, the Court issued a too-narrow ruling, ducking the crucial First Amendment issues although maintaining the authority of the FCC to issue vague, arbitrary regulations against the broadcast of "indecency" has a chilling effect on core First Amendment freedoms. In Knox, conversely, the Court issued a ruling far broader than the facts of the case required to invent a First Amendment rule whose effect will be to diminish political speech (at least according to long-established Supreme Court logic in which spending more money to influence elections means more speech). As the contrast makes clear, Knox is not the result of a steadfast commitment to First Amendment values but a simple hostility to labor.
The 5-4 decisions in Dorsey and the most important holding in Knox make clear, even in advance of a decision in the blockbuster health care case, that the Supreme Court should be a bigger issue in the presidential election than it currently is. Four Supeme Court justices are more than 70 years old, and a Romney administration would likely result in a median Supreme Court to the right of Antonin Scalia. As today's rulings indicate, this would have consequences not only for high-profile areas like abortion and federal power, but for important issues involving labor rights and civil rights as well.
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