Do Teachers Have First Amendment Rights?

Here is a case of a public school teacher getting fired for expressing political views. The teacher, Deborah Mayer, said in response to a student question, "I honk for peace," and "People ought to seek out peaceful solutions before going to war." Apparently some students (or their parents, more likely) were upset that Mayer was "bashing Bush," and Mayer lost her job.

This is a tricky topic, because it is difficult to say that public school teachers have complete free speech rights; they obviously shouldn't be politically or religiously indoctrinating children. But, can they express opinions in response to questions? The lawyer for the school board certainly doesn't think so. He argues that, "teachers don't have First Amendment rights in the classroom because they teach a curriculum decided by state and local officials."

This is also too extreme. This would imply that teachers are, more or less, robots that simply enforce the will of those who determine the curriculum. The only speech that is protected is that which supports the curriculum. The lawyer for the board noted, "If they disagree with the curriculum, they can go somewhere else." Real mature. That sounds like a redneck who says "hey you lib'rals! If you hate America so much, why don't you just leave!?" Of course, I don't think teachers should be able to ignore the curriculum, but teachers aren't just robots to enforce someone else's will (at least good ones aren't). They want to teach children, not just deliver government-approved information (the distinction is subtle, but I think the ability to see it is important for anyone interested in education/academia).

Again, this is tough. We don't want teachers to simply do whatever they want (although, a select few teachers would certainly put this freedom to great use), but at the same time, they shouldn't just be information spewing machines. I don't know where to strike the balance, but I definitely don't think Mayer should have been fired for simply responding to a question with her honest opinion.

So, anyway, the lower courts have so far sided with the school board, and now Mayer is appealing to the Supreme Court. It has not yet determined whether or not it will hear the case. Here's hoping it does, because while there are famous cases outlining students' speech rights in school, the area of teachers' rights is rather ambiguous.

On the Benefits of Judicial Dishonesty

Dahlia Lithwick over at Slate has an interesting article praising Antonin Scalia's candor in discussing precedents he would like to overrule.

Yes, someone at Slate has praised Antonin Scalia.

No, this is not the apocalypse.

So anyway, Justice Scalia has mentioned that he would vote to overrule New York Times v. Sullivan, which set relatively strict standards for bringing a libel suit (in particular, it established that supposed victims must show that an author of false statements had been acting with "actual malice"). Most Court watchers will say "Hey, Justices can't pre-judge cases like this! He should recuse himself!" Perhaps he should if such a case comes up, but that isn't really the point. Ms. Lithwick argues that this sort of pre-judging isn't inherently bad. Sure, if the two options are pre-judging and principled decision-making, then the latter is clearly better. But she argues that (and I agree that) the options are more like boisterous prejudice and silent prejudice. In other words, the justices act with ideological goals in mind, but most keep them to themselves. Fair enough. So, if these are the choices, she thinks that the out-spoken model is better, because

I'd rather hear the battle plans than not. It's precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred.

While I agree that confirmation hearings as they exist now are largely a waste of time, I'm not sure if shouting that the Court is just a bunch of ideological hacks is a good idea either. If we imagine a Court full of Scalias, we would have nine justices saying "I think this case should be overruled; I think this way about this issue, etc." While this honesty may be refreshing, I think there is something to be said about the "Judicial Myth": the belief that judges are somehow "above politics."

The Judicial Myth grants the Court a certain amount of institutional respect; it is viewed as not engaging in the kind of dirty politics that the elected branches so often engage in. I mean, come on, it seems a lot easier to respect John Roberts than Joe Biden, and I'm a Democrat! I think if members of the Court began speaking out about political issues prior to actually getting a case, the Court would lose that prestige. Of course, one can argue, "but Fz, if the Court really is just a bunch of ideological hacks, shouldn't it lose its prestige?" Yes, if that were true, it should. But, it isn't. The Court is engaged in politics, yes. And the Justices all have ideologies, yes. But, the kind of politics they engage in is inherently different than the kind the elected branches engage in. When we hear the term "politics," we generally think of it pejoratively. We don't think of politics as the debate between two sides of an issue, which is what it really is, or at least should be. We think of special interest groups, and lobbyists, and DC Madams. While I wouldn't be surprised if Clarence Thomas's phone number showed up on the DC Madam's list, the Court avoids this sort of politics. Its area of politics involves dealing with inherently political issues. And, like all Americans, judges have deeply-felt opinions on political issues. These opinions will naturally inform their jurisprudence. But, this doesn't mean they're all ideological hacks.

It means they're human.

As long as we have humans serving as judges, we will have to deal with the idea that they actually have opinions about things. However, even though this seems sort of obvious, it does not follow that judges should go on spouting those opinions. While it may be interesting to find out what is truly lurking in the mind of Samuel Alito, it would be harmful to the judicial process. I think it would give the false impression that judges do not make principled decisions. And while I disagree with Scalia on many, many issues, I must admit that his decisions are principled. He may be eager to overrule certain things, but this is because he has put in a lot of intellectual energy thinking about these things. Hell, I would be more worried if a judge didn't think about issues until a case came before him. I think that pre-judging (or at least pre-thinking) is not a bad thing. But, I don't think many people would agree with me on that. If they hear judges saying what they want to overrule, they would not think "this is an expression of principled legal thought," they would think "this is an expression of politics," with all its pejorative glory.

So even though the Court is a political actor (a principled political actor) , we definitely do not want the public thinking that the Court engages in "politics." So, Supreme Court Justices should keep their damn ideas to themselves.

On Supreme Court Polling

Rasmussen Reports has a poll that asked respondents to rate the Supreme Court's performance as Excellent, Good, Fair, or Poor. The responses aren't that important for the purposes of this post (but, for the sake of curiosity, they are 9, 31, 35, and 23 respectively), as I'm more concerned with the question itself.

It puts too much faith in the American public, to be blunt about it. The fact of the matter is that most Americans can name zero Supreme Court Justices. For proof, see this. In December of 2005, 57% of respondents could name no sitting Justices. Here are the percentages of people who could name individual Justices in 2005:

O'Connor: 27%
Thomas: 21%
Roberts: 16%
Scalia: 13%
Ginsburg: 12%
Kennedy: 7%
Souter: 5%
Breyer: 3%
Stevens: 3%

Now, I don't want to be mistaken here; I do not expect people to be able to rattle off the Supreme Court Justices, and the ability to do so is not necessarily correlated to knowledge of Court decisions, which is more important. However, there is no denying that the public is ignorant of what goes on in the Supreme Court aside from those few cases that are controversial enough to warrant coverage on local news stations (in this last term, probably only the partial-birth abortion and affirmative action cases). And I'm even okay with that. I don't expect people to know or care about the kinds of obscure cases I discuss on this blog. However, I think these polls are absolutely ridiculous. They ask people questions about a topic about which they know next to nothing. It is like if someone asked me how the food in Paris is despite the fact that I've never been out of the States, and instead of saying "Oh, I don't know," I said "Oh, it's fabulous!"

Polling is a dubious business. It forces people to make up their minds about things they may not be sure about and tries to pass itself off as scientific. With that said, I should note that I still rely on polls when conducting election analysis. But, I think election polls are an entirely different beast than approval rating polls. But, they have their own problems, too.

How can liberals take back the Court?

Linda Greenhouse over at The New York Times has an interesting article about what Democrats and liberals can (or cannot) do to reclaim the Court. The prospects seem grim. As she points out, the average age of the liberals is 74, whereas the average age of the conservatives is only 61. Even if a Democrat wins the presidency in 2008 and again in 2012, there is no guarantee that he or she will even get the chance to replace a conservative with a liberal. It is likely that the next President will get to replace John Paul Stevens, Ruth Bader Ginsburg, and David Souter, all liberals. Certainly, replacing these Justices with youthful liberals would be nice, but it wouldn't change the balance on the Court at all. So, liberals have to think about the long-term.

Unfortunately, thinking about the long-term is incredibly difficult when it comes to the Supreme Court. Liberals have to attempt to reverse a trend 40 years in the making (indeed, of the last 15 Supreme Court Justices, only two have been Democrats); they have to attempt to convince the public that "strict constructionists" are not the ideal Justices, which will no doubt be difficult, for at least two reasons. First, there is a lot of public apathy regarding the Supreme Court. So, it would be difficult for the Democratic party to try to motivate voters to vote on the basis of the future of the Court. This has been done in the past with some success when Nixon ran on a platform of opposition to the liberal Warren Court (although, it should be noted that three of his four nominees went on to support the Roe v. Wade decision). Ever since that election, the Court has been trending more conservative. Of course, Republicans like Nixon and Reagan had an advantage, they could argue "These liberals are taking God out of the classroom! These liberals are allowing criminals to run free! These liberals want to kill your babies! These liberals are legislating from the bench! Etc." These arguments, while rather simplistic in their understanding of the Court, have been very powerful in the past few decades. Indeed, most Americans don't want a liberal Supreme Court. So, liberals have a daunting task; convincing the American people that they want what they clearly do not.

I, for one, don't think it can be done. But, that doesn't necessarily mean that the Court is in the hands of conservatives forever. I think the only way to get a liberal Court is to make the Court a non-issue in presidential elections. If Democrats can distract Americans with other policy considerations, they can win elections, but when the focus comes directly on the role of the Court in American politics, conservatives will win nine times out of ten.

So, for liberals to have a shot at "taking back" the Court, a Democrat must win in 2008 and be re-elected in 2012, and another Democrat must win in 2016. After all, Scalia and Kennedy can probably stick it out until 2016 (they'll only be 80, which isn't that old for Supreme Court Justices). Any long-term plan attempting to reshape the constitutional vision of the American public is bound to fail. Democrats simply need to win elections.

Perhaps I shouldn't say "simply."

Some Musings on Affirmative Action

As I'm sure you've heard, the Supreme Court announced its decision in Parents Involved in Community Schools v. Seattle School District striking down the district's affirmative action plan. The plan sought to achieve a roughly 60-40 balance of "non-white" students to white students, to match the surrounding Seattle demographics. In other words, they wanted to avoid any of the schools in the district from becoming "the black school" or "the white school." Fair enough. I've already commented on my thoughts regarding affirmative action more broadly, and as I implied in that post, I agree with the Court's decision. I think this kind of blatant use of racial demographics is unconstitutional. A student should not be placed in a school solely because of his or her race. Indeed, Brown v. Board of Education stated rather clearly that the Equal Protection clause "prevents states from according differential treatment to American children on the basis of their color or race." At least this is the reasoning the Court uses. I'm not sure how reasonable it is to apply Brown while striking down an affirmative action plan.

After all, Brown was meant to end segregation. Affirmative action plans were one way (perhaps the only way) to achieve the goals of Brown. So, to suggest that an integration plan that would prevent de facto segregation is contrary to Brown seems rather foolish. I do not think the Justices who decided Brown would have thought that the sort of racial distribution going on in this plan is unconstitutional. But I do.

Sort of.

The interesting part of this case is Justice Kennedy's concurring opinion. He agreed with the Court that this specific plan was unconstitutional, but he was not willing to go as far as the others who seemed to suggest that race could never be used in these sorts of plans. Kennedy suggests that race can be a contributing factor in how school districts derive these plans. This is, of course, terribly vague, and the Court has used this terribly vague reasoning before. In the Michigan University cases a few years ago, Justice O'Connor argued that race can be a contributing factor for admissions offices to consider among other relevant factors. However, strict quotas are unconstitutional.

And strict "balancing acts" are unconstitutional. So, what then can school districts do to avoid de facto segregation? First of all, these plans must be "narrowly tailored" to achieve their stated ends. In this case, the Court argues, the distinction between "white" and "non-white" is not even conducive to the goals of the school district. The district requires that the racial balance fall within 10% of the 60-40 divide. So, the Court points out that a school with 50% white students and 50% Asian-American students would be "balanced" while a school with 20% white students, 30% Asian-American students, 25% African-American students, and 25% Latino students would be "unbalanced," even though the latter would be far more diverse. Thus, the "white"-"non-white" distinction cannot be shown to be an effective means of achieving the district's goals. Of course, the question then is how can districts narrowly tailor their plans? Justice Kennedy provides some assistance:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools;drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources forspecial programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

So, this sort of understanding allows for race to be a factor, but not the deciding factor. And in addition, it does not aribitrarily split children into racial groups. As Justice Kennedy points out, the Court's majority opinion seems to understand the Equal Protection clause and Brown as not allowing districts to attempt to do away with de facto segregation. In my previous post, I suggested that I agreed with this argument, but after some deep thought (indeed, it took me two days to figure out how I wanted to construct this post), it seems unbelievably foolish. To suggest that if inequality occurs naturally we can't adress it seems contrary to the goals of the Equal Protection clause and blatantly contrary to the goals of Brown. "Separate but equal" is not equal, even if that separation is "natural."

So, where do I stand? Ultimately, I agree with the Court that this plan is unconstitutional, but I recognize that it is necessary at times for race to be a factor. And there are ways of adressing the issue of de facto racial separation without explicitly splitting up the races. So, I find myself wading in the murky waters of Kennedy and O'Connor's intellectual waffling. But, you know what? Sometimes waffling is the only way to avoid unreasonable extremes. So, I'm okay with it.

On National Association of Home Builders v. Defenders of Wildlife

This case is awfully confusing, so I'll do my best to explain it, although I can't truthfully say that I understand it all. So here goes!

This case, National Association of Home Builders v. Defenders of Wildlife, tries to determine what should be done when two statutes seem to conflict. Should one win out? Should they be interpretted in such a way as to allow enforcement of both statutes? Logic tells me that the latter should be the case, but the Court held otherwise.

Perhaps I should simply quote Justice Alito here:

These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to “insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species.” The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. We conclude that it does not. The transfer of permitting authority to state authorities—who will exercise that authority undercontinuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes—was proper.

So, basically, the original statute (the CWA) laid out nine criteria for the EPA to transfer authority to a state. A later statute (the ESA) stated that all federal agencies (e.g. the EPA) must consult with pre-determined agencies to determine whether or not their actions will harm any endangered species or its habitat. This determination is not one of the nine criteria of the CWA. So, does the existence of the ESA create a tenth criterion that the EPA must meet before it can transfer authority?

Apparently not.

This confuses me, because the rather clear purpose of the ESA is to make sure that agency actions do not harm endangered species, and it seems that the CWA and the ESA can pretty easily co-exist, by creating this tenth criterion. But the Court reads the CWA's nine criteria as a strict limit, suggesting that those nine cannot later be amended by congressional statutes.

This is simply absurd. If Congress says "Here is a set of criteria," it should later be able to add on to that list. I suppose the argument is that the addition of the tenth criterion fundamentally changes the nature of the CWA, which explicitly listed nine criteria. Thus, adding a tenth would require the Court to significantly alter the CWA, which it does not want to do. But, the dissent has the better case here, I think. When two seemingly conflicting statutes can be read so as to co-exist, they should be read that way. So, since the addition of the tenth criteria does not radically change the CWA (after all, the nine criteria still need to be met before authority can be transferred), we should add it. That way, both the CWA and the ESA can be enforced.

Administrative law can be very boring, so I hope this made some sense and didn't bore you readers to death. Essentially, the idea is this: if Congress passes a law that seems to conflict with (but does not actually abandon) a previous law, the laws should be read in such a way as would allow both to be enforced (if possible, of course). Clearly here the intent of Congress was for both the CWA and the ESA to be enforceable. So, I think the dissent is clearly right to suggest that both should be enforced.

Plus, doing so might save some endangered species in the process, so let's do that.

Concering Hein v. Freedom From Religion Foundation

As you have probably heard, President Bush, through a series of executive orders, has set up the Office of Faith-Based and Community Initiatives, making it much easier for religious organizations to apply for federal funding. Many proponents of a "high wall of separation" between religion and government, such as myself (and Thomas Jefferson, if he were still alive), were concerned regarding the constitutionality of the existence of such a program. Can federal dollars be spent to support religious organizations? I don't think so. But what can I do about it? Can I sue the executive branch? That very narrow question is what the Court ruled on yesterday in Hein v. Freedom From Religion Foundation.

And apparently the answer is no, I cannot.

A bit of legalese: this case is all about "standing," or whether or not someone bringing a lawsuit actually has the right to be bringing that lawsuit. Usually this requires the person bringing the suit to show some sort of specific injury. So, one of the basic questions in this case is "Are taxpayers sufficiently injured when the executive branch spends money for religious purposes to bring a claim in court?" So, just to clarify (and perhaps make this post much more boring), this case did not rule on the constitutionality of these so-called "faith-based initiatives."

On with the analysis.

First, I should explain the voting. It was 5-4, with the conservative gang in the majority and the liberals in the minority. However, the controlling opinion (written by Samuel Alito) was only joined by the Chief Justice and Anthony Kennedy; Antonin Scalia and Clarence Thomas agreed with the judgment, but wrote a concurring opinion, thus making Alito's opinion a "plurality opinion" rather than a "majority opinion." This has the effect of weakening the opinion as precedent.

So, the plurality opinion first ruled that a taxpayer is not injured by executive spending from funds generally appropriated by Congress for executive expenditures.

Generally, a taxpayer's interest in seeing that Treasury funds are spent in accordance with the Constitution is too attentuated to give rise to the kind of redressable "personal injury" required for Article III standing.

This does make sense for practical purposes; allowing any and all complaints regarding federal spending would flood the federal courts with cases in which people simply do not like the way Congress or the executive is spending money. However, we have to delve a bit deeper.

The Court has ruled that there is at least one relevant exception to such a rule. In Flast v. Cohen, the Court declared that a taxpayer would have standing to challenge the constitutionality of "exercises of congressional power under the taxing and spending clause." In other words, if Congress had passed a law creating a tax to fund or explicitly providing funds for religious purposes, a taxpayer would have standing. Apparently Congress' role in all of this is the important part.

The link between congressional action and constitutional violation
that supported taxpayer standing in Flast is missing here.

So, I can sue if Congress says "Mr. President, spend this money on religious purposes," but apparently I cannot sue if Congress says "Mr. President, spend this money as you wish," and he subsequently spends that money on religious purposes.

This is simply absurd. If Congress violates the Constitution, we can call them on it, but if the President violates the Constitution, we can't? Please, someone show me some sanity! Oh, hey, it's Justice Souter:

I see no basis for this distinction in either logic or precedent, and respectfully dissent. We held in Flast, and repeated just last Term, that the "‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion."

Thank you, Justice Souter. The point here is that Flast should be read to allow all cases challenging the explicit "extraction and spending of tax money in aid of religion." The narrow reading of Justice Alito creates a rather nonsensical distinction between congressional appropriation and executive spending.

Back to the injury matter for a moment: Souter makes clear that the expenditure of taxpayer money to fund religious causes does create injuries. Quoting James Madison, he points out:

The government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment" of religion.

Why? Because the founders considered religion to be a matter of conscience, and the right to not have one's paid taxes spent on religious purposes (which would really amount to forcing one to pay for religious purposes) is fully encompassed by the right to conscience. Thus, any expenditure of taxpayer money on religious purposes is a violation of the right to conscience, a rather large "injury," if you ask me.

So, we secularists have no recourse to rampant executive expenditures on religious causes. Perhaps we could write to our Congresspeople, asking them to make explicit that no congressionally allocated funds (whether explicitly or generally allocated) shall be spent on religious causes, but this seems very unlikely. After all, I highly doubt that Congress would ever take on religion so directly.

Of course, we can always elect someone who understands the First Amendment in 2008. I suppose that's some sort of recourse.

What a Day at the Court: On Morse v. Frederick

The Supreme Court announced some rather important decisions today, three of which I vehemently disagree with. I will post at length about all three within the coming days, but first, I will deal with Morse v. Frederick, AKA the "BONG HiTS 4 JESUS" case.

A bit of background: During a school-sponsored event in which the Olypmic torch would pass by the high school, Morse and his cohorts unveiled a large banner that read "BONG HiTS 4 JESUS." Principal Frederick ordered the students to get rid of the banner; Morse refused; Frederick confiscated the banner and suspended Morse.

To the ruling: The ruling was 6-3, although given that Justice Stephen Breyer joined the majority's ruling, but completely and utterly disagreed with their (rather unfounded) logic, it is more rational to call it 5-4, or perhaps 5-3-1 (one with no opinion, that is). I'll explain more about that later on. First, though, the majority ruled that Frederick acted constitutionally and that she did not take away Morse's First Amendment right to free speech.

It has been well established that one's rights in school are not equal to one's right out of school. Given the unique school setting, administrators need to have the power to restrict certain kinds of speech, particularly speech that either works to impede the school from properly doing its job or causes a disruption. Using this logic (which I think, on its own, is completely legitimate), the five conservative Justices (Chief Justice John Roberts and Justices Scalia, Kennedy, Thomas, and Alito) make the strained argument that the banner worked against the school's goal of promoting an anti-drug message by promoting "bong hits." Given that the only "reasonable" interpretation of the banner is to either promote or celebrate marijuana use, the principal acted reasonably, given her duty to "safeguard those entrusted to [her] care from speech that can reasonably be regarded as encouraging illegal drug use."

Yes, what would these little high schoolers do if wonderful Principal Morse hadn't confiscated that banner? They'd all probably go out and become stoners and hookers and bums and terrorists.

This may have been a disruption in the sense that students (and news reporters covering the event, who Morse was actually trying to incite) said "Hey, what's that!?" but it was not a large enough disruption from the school's message to legitimize suspension. Justice Souter noted during oral argument:

It's political speech, it seems to me. I don't see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school.

Indeed, it was a political statement, perhaps of the lowest kind, but political nonetheless. It wasn't saying "Hey students, smoke marijuana!" It was saying "Look at me! I have the freedom of speech!" The kid was, to put it bluntly, an attention whore. Obnoxious? Yeah, probably, but I think it is a stretch to suggest that he was actually promoting drug use. He was promoting himself; he wanted to be on TV, for Christ's sake!

And as Justice Stevens so eloquently notes in his dissent, this suspension actually worked against the school's broader goal of creating bright, intellectually astute students.

Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views.

Indeed, "Shut up!" "Why?" "Because I said so!" is no way to create good students.

Back to Breyer for a bit of explanation. Breyer agreed with the ruling on a more technical grounds: Morse shouldn't be able to collect damages from Frederick. He argued, however, that the Court should have decided the case on that limited basis and not even touched the First Amendment issue. He points out that this ruling manages to muddy up the waters of school speech even more than they were before. Indeed, it raises a set of new questions. If schools can ban speech that promotes illegal drug use, can a group of students discussing medicinal marijuana be punished? What about if they're having a debate about the legalization of marijuana? Can the "pro" side be reasonably accused of promoting illegal drug use? These are all questions Breyer asks, so it seems pretty clear that he doesn't buy into the majority's logic, and thus including him in the majority count seems odd.

Boy oh boy, what is our world coming to when stupid high schoolers have to think twice before being stupid high schoolers? Actually, that sounds kind of nice, but that isn't the point. The First Amendment isn't supposed to make us more comfortable; it's supposed to allow controversial speech. Indeed, it exists so that the argument "this speech makes us uncomfortable" cannot be used. Of course, this sort of nonsensical "speech" may not have been what the framers had in mind when the First Amendment was drafted, but it seems clear to me that they would approve of the spirit behind that speech.

Tomorrow: My take on Hein v. Freedom from Religion Foundation.

Wednesday: My take on National Association of Homebuilders v. Defenders of Wildlife.

The Supreme Court Tackles More Traffic Issues: Brendlin v. California

I tend to blog about 5-4 decisions, whining about the majority opinion, but here we have a unanimous opinion, and one that I can agree with.

In Brendlin v. California (I'll direct you once again to the New York Times), the Court decided that a passenger in a vehicle that has been pulled over has just as much of a right to challenge the traffic stop as does the driver. This was a no-brainer (indeed, Lyle Denniston at SCOTUSblog describes this decision as "Applying a considerable dose of common sense"), for after all, when a vehicle is stopped, the passenger is restrained (or "seized" in Fourth Amendment terms) just as much as the driver is. Writing for the Court, Justice David Souter notes:

The test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave.

So, in other words, unless a passenger reasonably assumes that he can leave during a traffic stop (which would presumably never happen, as passengers need permission to exit the vehicle), he has been seized, and thus has grounds for challenging the seizure in Court.

There isn't a whole lot to say about this case; it is a pretty dull case for the most part. All of the Courts of Appeals and nearly all of the State Courts agreed with this ruling. Only a select few State Courts (one of which was California) were senseless enough to argue that the passenger is not seized in a traffic stop.

I'm glad the Court put them in their place.

On Racial Divisions

It is very rare that I support conservative commentators, but here is a decent article about the upcoming SCOTUS decisions on affirmative action.

The AA plans being questioned involve school districts creating optimum racial balances, and sending students, based on nothing but their race, far out of their way in order to achieve this balance. So, if a white student lives a block away from a school that has too many white students already, he can be shipped off to a school well over an hour away, again, based on nothing but his race.

I've tried to understand the "liberal" arguments about how affirmative action is necessary in a practical way; that we have not yet reached racial equality in this country. And I agree with the latter, I think it is foolish to suggest that there is not still a racial divide. However, it is also foolish (and far moreso) to suggest that dividing the races in this sort of way is the cure. As Chief Justice Roberts said (and I don't quote him in a good light very often), "It is a sordid business, this divvying us up by race."

Of course, AA supporters will say that this is an attempt to end de facto racial divisions. In other words, even if there is not discrimination by law (de jure), there can still be existing discrimination (e.g. the coincidental - or perhaps intentional, they might say - creation of "black schools" based on high racial densities in a certain area). So, shipping white students into and black students out of these "black schools" can create more of a racial "balance," whatever that means.

Which brings up an important point - what is an ideal racial balance? Is it a reflection of the greater population? Or should black students make up a greater portion of the student body, in an attempt to get rid of any stigma that is associated with being a 10% or so minority?

Personally, I think the ideal racial balance is whatever happens naturally. Some people will probably want to throw rotten eggs at me, because after all, the same question can be raised: what is natural? Slavery wasn't natural; de jure segregation wasn't natural. How can we tell if government is detached enough to ensure that any lingering "segregation" is a more "honest" kind of de facto (after all, de facto is often used to suggest that there is a more sinister, untracable kind of discrimination rather than the far more blatant de jure)? And even if it is "honest," is it acceptable?

I think it has to be acceptable, since the only proposed "cure" does more harm than good. After all, let us imagine a white family being told that it has to send its kids 90 minutes away to go to school to achieve this allusive "ideal racial balance." Are they likely to say "Oh, that's just great!" or are they likely to form new negative feelings about affirmative action and/or minorities that they may not have even had before? I think the better odds are with the latter. Affirmative action pits races against one another in a way that is completely non-conducive to equality and understanding.

And I challenge one of the fundamental underlying assumptions of affirmative action: that diversity is good. Now, don't get me wrong, I don't think it is bad, by any means. I have a neutral position toward diversity. Well, actually, I support true diversity, but racial diversity doesn't necessarily achieve that. For instance, in school settings, the Court has reasoned that racial diversity is good, because it can bring together many different viewpoints and foster a greater understanding of different people and different opinions. Fair enough, but that assumes that the different races will always have different viewpoints. But, to think that some of the unbelievably rich, affluent black kids I went to high school with brought some sort of unique "black viewpoint" is absurd. Certainly, one's race will affect one's viewpoints to a certain extent, but one's environment will do that even more. And, what's worse is that is also fosters the terrible notion that black students are there just to give the "black opinion."

I completely support intellectual diversity; it is the only way to receive a good education in my opinion, but assuming that racial diversity will attain that goal is, well, racist. It necessarily assumes that black people and white people have different opinions.

But, ultimately, at least in terms of legalities, it all comes down to the Constitution. I've never been one to read the Constitution too narrowly; I think a broad, "organic" interpretation is proper especially when the document is too vague to make any conclusions, but on racial matters, the Constitution is crystal clear. The 14th amendment demands "equal protection under the laws." Now, some will argue that de facto segregation is not "equal protection," and that we have to go against the 14th amendment in order to properly enforce it. In other words, we have to treat the races unequally in order to get to a point where we can truly and fully treat them equally.

I have problems with that. You can't put constitutional requirements "on hold." The Amendment doesn't say "do this when you're ready;" it says "do it." The Court, for instance, couldn't say "We're going to take away free speech until we figure out what free speech is; we'll get back to you in thirty years or so." Likewise, it can't (or shouldn't) say "Hey white people, hang on for a few decades while we try to figure this equal protection stuff out."

Ultimately, though, we just have to look at the situation, and I think logic sorts things out. Saying "You cannot go to this school because you are white" sounds awfully reminiscent of the "you cannot go to this school because you are black" type of business that was ruled unconstitutional in Brown v. Board. Of course, the intentions of the former are better, but the means to reaching that end are blatantly unconstitutional. Any law that says "you can or cannot do this simply because of your race" seems undeniably constitutional to me. It doesn't matter if the ends "justify" the means. The Alien and Sedition Acts may have been justifiable in that they could protect America, but they blatantly violated the First Amendment's requirement that Congress not restrict free speech. All laws have to conform to the Constitution; if you want to achieve a certain goal, you have to act within the bounds of that document.

Perhaps I should've noted this earlier, but whenever one discusses racial issues, there is always the risk of being branded "racist." So, if you have this inclination, please re-read the post and try to understand that there are no racist feelings behind this. Plus, I'm voting for Barack Obama, so get off my case.

More on Ledbetter

Richard Thompson Ford has a good article on the Ledbetter decision over at Slate. He makes an important point that I ignored in my post below. Alito focuses on intent rather than consequences. In other words, an action is not discriminatory so long as it is not intended to be discriminatory (even if it has discriminatory consequences). The argument goes like this: while the initial pay raise may have been discriminatory, there is no reason to suggest that all subsequent raises were discriminatory (and this gets us back into the 180 day issue discussed in the post below). However, Ford makes a good point:

Ledbetter argued that she was paid less than that of her male co-workers because of her sex right up until she retired. To prove this, she showed that her employer intentionally discriminated against her at some point in setting her salary, and every subsequent paycheck was an application of the original set point. Who cares whether the subsequent salary decisions were intentionally discriminatory? Goodyear continued to pay Ledbetter less than her co-workers for the same work because of her sex. That's sex discrimination. When it first decided to discriminate against her should be irrelevant.

So, the Court is saying that discriminatory intent must be shown within the past 180 days. However, an application of that discriminatory intent may not itself be discriminatory intent. What are the implications of such an argument?

If an employer pays a woman less because of her sex, and isn't found out within the 180- or 300-day period, the employer can continue to pay the discriminatory wage. For employers, the lesson is obvious—hide your misdeed for six months and you're not only off the hook, you get to keep cheating. For employees, the lesson is equally clear: Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure.

This is simply absurd. An action can be representative of discrimination even if it isn't intended to be discriminatory. Even if Ledbetter received equal pay raises after the initial raise (which is unlikely), her salary still reflects discrimination. Indeed, the act of her receiving her unfairly low paycheck seems like discrimination to me. A decision to not give a woman a fair raise because she is a woman is discrimination, yes, but that is not the end of the discrimination. Continuing to support that decision by paying her less is discriminatory, even if it isn't intended to be.

On Ledbetter v. Goodyear

In Ledbetter v. Goodyear, the Court reached another 5-4 ruling; another one that would have gone the other way had O'Connor still been on the Court.

I always recommend reading Linda Greenhouse's articles, so here's her explanation.

And here is some commentary that I find rather agreeable.

Down to business. At issue here is how to interpret a statute involving sexual discrimination in the workplace. The statute requires that complaints be filed within 180 days of a given incident. So, if a woman thinks that a male candidate for a job was chosen over her simply because of gender, she has 180 days to file a complaint. Fair enough. But, this case involves pay raises, something that affected women may not know about until well after 180 days.

Some specifics to this case. When hired, Ledbetter's salary was the same as her male counterparts', but over time, she consistently received smaller raises, allowing for a rather drastic gap in pay. Indeed, at the time of the complaint, she was making $3,727 a month, while the lowest-paid man was making $4,286, and the highest-paid man was making $5,236. The discrimination seems undeniable.

However, in order to file a complaint, she would have had to have done so within 180 days of any of the "incidents," or in other words, any of her raises. But she had no reason to believe that her raises were discriminatory. After all, when I received my last raise, I was sworn to secrecy; I assume most companies have very similar policies. So, she had little to no way of knowing that there was even an issue within the given 180 days. Look at it this way; she could find out about blatantly discriminatory practices 181 days after they happened, but according to the Court's (majority opinion authored by the fresh-faced Samuel A. Alito) interpretation of the statute, she would not be allowed to pursue legal action.

Of course, the majority claims that they are simply enforcing legislative intent. They provide a "strict" reading of the statute; 180 days means 180 days. No "legislating from the bench!" But, I have a hard time believing that the legislature that crafted this statute would have meant that Ledbetter would not be able to pursue legal action. Indeed, a strict reading of the words of the statute requires that the Court rule the way it did, but a "strict" reading is not always the best way to find legislative intent. It is likely that no legislators envisioned this sort of a scenario, and thus they did not necessarily intend for this to be the outcome.

Of course, given that this is a case of statutory interpretation (i.e. not Constitutional interpretation), Congress can rephrase the statute and, for all intents and purposes, overrule this ruling. The Court has used this logic many times in the past: if you don't like a law and it doesn't raise any Constitutional questions, take it up with Congress, not us! Fair enough; this same logic has been used to do some great things (to allow for the New Deal, for instance - but they were saying "Congress clearly intends this, you insane judges have to stop coming up with non-existant constitutional concepts to back up your laissez-faire ideologies"), but this is different. This is strict for the sake of being strict (or for the sake of giving women the shaft). The statute is clearly designed to do away with gender discrimination, so the Court is using the statute's words to work contrary to the statute's goals.

Maybe it's just me, but isn't ensuring the statute's goals more important than ensuring a strict reading of the words?

Cameras in the Court?

SCOTUSblog has a post giving the basics of the "cameras in the Court" issue (or perhaps I should say "non-issue"). Basically, Senator Specter has introduced a bill multiple times to force the Supreme Court to televise its proceedings. The obvious question is "Why?"

I assume the answer is something along the lines of "it would provide political education to a public that knows next to nothing about its Supreme Court." Now, that diagnosis seems correct (how many people do you know who can name even three of the Justices or name a Court case besides Roe v. Wade, Marbury v. Madison, or Brown v. Board?), but I don't necessarily think it's a problem. Now, I'm not condoning apathy, but in the context of the Court, it's fine. I'm troubled when apathetic people vote based on who's better looking or who has a better name, but the Court has no accountability, so the public at large has no real reason to know much about the Court. After all, C-SPAN exists so we can see government in action; so we can hold them accountable. Even if we see the Court in action and are outraged, there's absolutely nothing we can do about it, so this seems like knowledge for the sake of knowledge.

And that doesn't outweigh the cons. As the SCOTUSblog post points out, televising proceedings would allow for more grandstanding on the part of the attorneys and even on the part of the Justices (okay, maybe just one Justice... Can you imagine Scalia in front of a camera? He'd have a field day). And we always complain about the "sound bite" nature of the media; bringing the Court into is not a good idea. I think it would lead to a grave misunderstanding of the legal issues actually before the Court.

Some of the Justices cite safety concerns. The Court occassionally does some extremely unpopular things; increased exposure means increased risks. Indeed, David Souter is so passionate about this issue that he has said that any cameras entering the Court would have to "roll over my dead body."

There are also some issues of Due Process. This is more true, I think, of jury trials. Extensive (and perhaps slanted) media coverage can "decide" a case before it has even been brought to trial. The argument is that members of a jury will not give an unpopular defendant a fair shake if there is a large camera presence. But, I don't think the Justices would be swayed so easily.

One lawyer suggests that the cameras would actually make the justices behave better. Perhaps Scalia would cut back on the sarcasm. But, I don't buy it for one second. What are the Justices scared of? They're Supreme Court Justices for Christ's sake. Assuming they are even "misbehaving" now (which seems like a stretch), they would not suddenly behave just because some C-SPAN nerds like me are watching over them.

Even if the law does pass eventually (which is doubtful), I imagine the Court would rule that it is unconstitutional for Due Process reasons.

The Post-2008 Court

Tom Goldstein has an interesting post over at SCOTUSblog about the importance of the 2008 election in determining the future of the Supreme Court. The three most likely to retire justices (according to Goldstein) are Stevens, Souter, and Ginsburg. Stevens is just too old to keep going past the 2012 election, Souter is a fiercely private person and seems to hate the Washington DC lifestyle, and Ginsburg is rumored to have health problems (but there is no hard evidence to back that up).

So, the next president will in all likelihood replace at least two of the liberal justices. If a Republican gets this opportunity, the Court will move a staggering amount to the right. There would be a conservative bloc of Scalia, Thomas, Roberts, Alito, and these two (and, of course, Kennedy somewhere in the "middle"). All sorts of Warren Court era decisions could be in jeopardy.

Unfortunately for us liberals, it doesn't seem that a Democratic victory in 2008 would allow for any significant shift to the left. A Democratic president would "play defense," so to speak, replacing liberals with liberals. Of course, most modern presidents win reelection, so if s/he does get reelected in 2012, s/he might get the chance to replace a conservative. But, none of them are really that old. Scalia and Kennedy will only be 76 in 2012, which isn't that old for Supreme Court Justices. Thomas will be 64, Alito will be 62, and Roberts will be 57.

Of course, the Democrats are likely to maintain control of the Senate after 2008, so a Republican president would not be able to get an ultra-conservative through, but even a moderate conservative could do considerable damage to "liberal" precedents.

Just one more reason to vote Democrat in 2008.

Anthony Kennedy: The Not-So-Swing Vote

After Sandra Day O'Connor retired from the Court, we heard a lot of talk about how Associate Justice Anthony Kennedy would take her place as the Court's "swing vote." Certainly, there is some truth to that. He is the closest thing the Court has to a swing vote by far, but he is no O'Connor.

Jan Crawford Greenburg has a good post over at Legalities explaining Kennedy's role on the Court. She points out that Kennedy has been in the majority of every 5-4 decision this term, which would seem to give him great power, and which has led some people to call this "The Kennedy Court." But, JCG views it differently (and I agree). She says, "It's the Roberts Court v. the Stevens Court." And ultimately, it comes down to being just "the Roberts Court."

This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it’s going to take. When you talk about long-range influence over the law, it’s the ideas that define the Court. It’s a Court in struggle—not for the vote of one justice, but for an intellectual mooring.

Now, one might say, "don't you need the vote of that one justice in order for your ideology to win out?" Well, yes, but the point is this:

Kennedy is not O’Connor. Kennedy doesn’t instinctively seek the middle or try to provide balance. He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.

Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win.

Look at Gonzales v. Carhart. That decision makes clear Kennedy’s vote is not going to be up in the air nearly as often as O’Connor’s.

The Rehnquist Court (which many, rightfully so, dubbed "The O'Connor Court") was (at least in its later days) a battle for one vote. O'Connor shaped the Rehnquist Court perhaps more than any other Justice. But, that is not true of Kennedy. He is a pretty reliable conservative, so attorneys are not arguing their cases trying simply to persuade Kennedy as they did with O'Connor. He is not nearly as open-minded as O'Connor, which is not necessarily a bad thing, when we think in terms of consistency of the law.

But Roberts has not necessarily won the battle simply by getting Kennedy on his side most of the time. In another post, JCG describes Kennedy's judicial style:

He can seem infuriatingly unmoored. He agonizes over his decisions. He’s been known to change his mind in a case or two. And his writing style is about as grand as his ornately decorated chambers in the Court.

However, Roberts is well known for wanting to decide cases as narrowly as possible and creating a sense of "predictability" in the law. Thus, a complete "victory" for Roberts would require changing Kennedy's style.

If [Roberts] could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.

That would be the Roberts Court.

So, perhaps it isn't the "Roberts Court" quite yet, but it certainly isn't the "Kennedy Court."

The other side of Landrigan

In order to be fair, I want to present the opposing argument to my opinion of the Landrigan case. Over at "Crime and Consequences" (a blog sponsored by the conservative Criminal Justice Legal Foundation, which describes itself as "an organization advocating reduced rights for accused and convicted criminals"), they have a post arguing in favor of the Court's decision. The argument is basically that the District Court was correct to defer to the state trial court's factual finding that defendant waived all mitigating evidence. Or, to put it differently:

It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.

So, "the record" (i.e. defendant's remarks such as "bring it on" regarding the death penalty and his refusal to allow mitigating evidence) disproves defendant's claim that his attorney was incompetent. However, the mitigating evidence that defendant waived was only the testimony of his mother and ex-wife. To suggest that he waived all mitigating evidence is flawed logic. He was not aware of his mental condition; he could not have waived evidence that he had no knowledge of. But, of course, opponents will argue against the mental illness defense anyway:

It is disappointing that the dissent got four votes in this case. Apparently, four Justices were actually impressed with Landrigan's far-fetched psychological argument. There are enough psychologists and psychiatrists in America who are viscerally opposed to the death penalty that it is likely every inmate on death row can find one who will swear he has some kind of serious mental problem. If that were enough to brush aside all the limits Congress has placed on relitigation, then it would never be possible to have an effective death penalty. That is, of course, exactly what the opponents want.

The dissent in this case does not suggest that the dissenting justices are "impressed" by Landrigan's argument. It simply suggests that they think the argument deserves to be considered in court. Yes, I think the dissent does ultimately represent an opposition to the death penalty more broadly, but it also represents a desire to see all relevant evidence presented before a court of law. It is possible that such mitigating evidence could have affected the sentencing, and I think that shows that it deserves to be considered.

More on Landrigan

Please read Linda Greenhouse's article about the Shriro v. Landrigan decision over at the Times. She is excellent. I want her job.

Anyway, after reading that, I was reminded of something I left out of my last post: the Alito factor. This case probably would not have gone the way it did if O'Connor was still on the Court. Indeed, a case a few years ago entitled Rompilla v. Beard had O'Connor siding with the liberals in a very similar case involving the constitutional right of death-row inmates to be represented by competent attorneys. Interestingly enough, Alito, in his capacity as an appeals court judge at the time, actually wrote the opinion that O'Connor helped to reverse in Rompilla. So, it seems that the Court is shifting noticably to the right thanks to Alito.

On Schriro v. Landrigan

Ah, another 5-4 decision.

Schriro v. Landrigan explores an interesting question. It has been established by Supreme Court precedent that defendants sentenced to death are entitled to an appeal if they can sufficiently prove that their attorney did not defend them properly. However, in this case, the defendant refused to allow his attorney to present mitigating information (in this case, testimony from his mother and his ex-wife) and even challenged the court to "bring on" the death penalty. However, after learning about a long-standing mental illness that his attorney did not discover, the defendant sought an evidentiary hearing claiming that he was improperly represented by his attorney. The District Court Judge refused to grant a hearing, based on the defendant's actions at trial. However, the Court of Appeals reversed, arguing that the attorney did not investigate at a constitutionally sufficient level (the attorney did not uncover or present evidence of the aforementioned psychological illness that could help explain defendant's actions). The Supreme Court reverses, arguing that even if the attorney had uncovered evidence of this illness, defendant would have refused to allow such evidence to be presented. As one might expect, the Court divided along ideological lines, with Thomas writing the majority opinion and joined by Roberts, Scalia, Kennedy, and Alito and with Stevens writing the minority opinion and joined by Souter, Ginsburg, and Breyer.

At first reading, I sided with the majority, but upon deeper reflection, I return to my liberal roots and side with the minority. I think this ruling harms the administration of justice. The fact of the matter is that this defendant wants to present new evidence that his attorney was too incompetent to uncover. Even the majority admits that the attorney was incompetent to not find evidence of mental illness. But, the majority bases its opinion on hypotheticals: the defendant "would have" refused to allow such evidence to be presented. We can't know that for sure, and after all, it seems like the defendant explicitly wants such information to be presented. If the defendant had been confronted with the fact that he had suffered from a mental illness, he may very well have been willing to allow such information to be presented at trial. Or maybe not. But the point is that we can't know for sure. And the Supreme Court shouldn't be basing opinions on "maybes."

If the only mitigating evidence had been the testimony of defendant's mother and ex-wife (the evidence that he explicitly refused to have presented), I would agree with the ruling entirely. However, there was other (perhaps more persuasive) mitigating evidence that the attorney did not uncover. Such a failure of investigation would not stand up to the scrutiny of Supreme Court precedent. The attorney clearly did a constitutionally insufficient job here. But, the Supreme Court is basically saying "That's okay, because the defendant let him get away with it, even though he didn't know the extent of his attorney's incompetence."

The fact of the matter is this: the defendant never said that the attorney should not present evidence of mental illness (indeed, neither the attorney nor the defendant knew about it at the time), and the Supreme Court is acting out of line to play the role of psychic, predicting what defendant would have done. It seems blatantly obvious that the defendant does want such information presented, and I think he is entitled to an evidentiary hearing to investigate the incompetence of his attorney. Really, I think this decision just represents a fundamental split over the death penalty more broadly. The majority wants it to be easier to administer, and the minority wants it to be harder to administer. Me? I'm all for the death penalty, but not when there is evidence left unexplored. This evidence deserves to see the light of day, and this attorney's incompetence should be exposed.

To answer a question...

DC poses a few questions below regarding Supreme Court groupings. Here is my attempt at an answer.

First, I do not mean "political" in the pejorative sense, as in "these questions are too political for the Court to be considering." The Court is political; it has to answer political questions. So, with that in mind, I would consider "blatantly political" questions to be those which Presidents and the Senate are concerned with when nominating and confirming/rejecting, respectively. In other words, when we hear President Bush say "I want to appoint strict constructionists," that is code for "I want a political conservative on the Court." He is looking for someone who will limit individual rights (abortion, free speech, etc.), support a broad reading of presidential power, fight against a "high wall of separation" between Church and state, and so on. In other words, he wants someone who will take his side on the hot-button issues of the day. And that is fine. I have no problem with that. To expect presidents not to consider politics in nominating Justices is simply absurd; being a Supreme Court Justice is inherently political, and for the president to ignore that would be foolish.

So, anyway, on these hot-button issues, we typically see the "liberals" and "conservatives" group up against each other. For instance, in Gonzales v. Carhart (regarding "partial birth abortion"), we saw a 5-4 split, with the conservatives supporting the law, and the liberals opposing it. However, there are a few hot-button issues that produce some odd results. For instance, Justice Kennedy (who is, now that O'Connor is gone, the closest thing to a "swing vote") typically supports gay rights. Justice Scalia, because of his theory of textualism, tends to support free speech (he ruled that laws against flag burning are unconstitutional). But, in general terms, these so-called "hot-button" issues typically produce partisan splits.

We see odd combinations when it comes to technical or mundane constitutional or legal matters (which represent the overwhelming majority of the Court's business). Since candidates are not vetted based on how they will interpret the Dormant Commerce Clause, for instance, there is not a strong link between party affiliation and vote patterns. So, to answer DC's question more briefly, I think we will see the classic partisan split on the issues that presidents care about when they are nominating Justices (such as abortion, gay rights, presidential power, affirmative action, religious matters, etc.), but we will see more interesting combinations as the cases get less interesting (i.e. more about technical legal issues), oddly enough.

A question about the Supreme Court and "blatantly political" issues

Fz has a good post below on odd groupings on the Supreme Court. Since I'm no expert on the Supreme Court, maybe he could help me out. He notes that the Supremes tend to divide by partisan affiliation on "blatantly political" issues (like abortion and gay rights) and to form strange alliances on others. I have a couple of questions. First, what makes an issue "blatantly political"? Is it a well-known issue, a moral issue, or something else? Second, in what areas are we likely to see strange groupings in the future?