Disrobed! Actually, They Think For Themselves

by Richard W. Garnett

It’s probably unavoidable that the Supreme Court term that ended last week will be defined in most people’s minds by a single dominant image. Who could ever forget the surreal scene that unfolded simultaneously on the court steps and on millions of TV screens a little after 10 p.m. last Dec. 12, when the justices released their decision in “Bush v. Gore”? But the danger is that the focus on that decision— so frequently derided as partisan - raises another, cartoon-like image of the court: that of a marble facade behind which disciplined factions of squishy liberals and hardhearted conservatives wage war over hot-button issues, while a handful of thoughtful moderates anguishes over which side to join. Cases would be simple in a cartoon court like that. But real cases, like real life, are more complicated.p. This Supreme Court term revealed that our justices are neither easy to pigeonhole nor easy to predict. Their dispositions are not merely “restrained” or “activist.”Their decisions aren’t predetermined by the ideological labels slapped on by partisan animators. Over this past year, they did what they always do: They worked hard to decide difficult cases. And in numerous instances, the results were far removed from what the “law and order versus bleeding heart” paradigm would lead us to expect.p. This reality came through clearly in cases involving the justices’ application of judicial tools, methods and dispositions sometimes labeled “conservative” by politicians and commentators: a focus on the Framers’ intent, an effort to identify the original meaning of the Constitution’s text and a respect for deeply rooted legal traditions. In Kyllo v. United States, for instance, a sharply divided court held 5 to 4 that a police practice of using a “thermal-imaging device” to detect heat emanating from a suspect’s house in order to determine whether marijuana was being grown inside was a “search” of that person’s home within the meaning of the Fourth Amendment and therefore almost certainly required a warrant.p. It should be easy to predict the votes of the cartoon court in a case like this: The lock‘em-up “conservatives” (Chief Justice William Rehnquist joined by Justices Antonin Scalia and Clarence Thomas) would vote to smooth the way for government drug warriors, while the soft-on-crime “liberals” (Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter) would take a stand for privacy, liberty and maybe even a little personal experimentation. In fact, though, the arch-conservative cartoon villain Scalia, joined by Thomas and liberals Ginsburg and Souter, wrote the majority opinion upholding the sanctity and privacy of the home and protecting it from high-tech government snooping, over the dissent of the often lonely liberal Justice Stevens, who was joined by the “swing” justices, Anthony Kennedy and Sandra Day O’Connor.p. So what happened? Did Justices Scalia and Thomas lose the script?p. No. The same judicial tools and philosophical commitments that so often attract knee-jerk labels like “conservative” compelled Scalia and Thomas to the “liberal” result in Kyllo. The text of the Constitution, after all, clearly guarantees the right to “be secure in [our] houses” from “unreasonable searches and seizures.” This, for a conservative like Scalia, is not a right that should wax and wane with the times and technology. Scalia was not out to unearth new rights in a “living” Constitution. It is a deeply rooted principle of Anglo-American law and tradition that the privacy of the home is protected against government intrusion. Scalia’s purpose was, as he put it, to preserve “that degree of privacy against government that existed when the Fourth Amendment was adopted.”p. Rogers v. Tennessee was another surprise to those who subscribe to the image of the cartoon court. Wilbert Rogers had been convicted of murder when the man he had stabbed died after 15 months in a coma. As Rogers’s lawyers pointed out to the Tennessee courts, however, the traditional criminal-law rule — and the rule in Tennessee at the time — was that no one could be convicted of murder unless his victim died within “a year and a day.” (This rule made sense when life was precarious, medical care spotty at best and forensic pathology little more than guesswork.) The Tennessee court acknowledged the rule but then discarded it as outdated (as most states had already done), and affirmed Rogers’s murder conviction.p. Again, we might have expected in Rogers a typecast 5 to 4 split between left and right. Instead, Justices Souter and Ginsburg joined with Rehnquist, Kennedy and O’Connor to affirm the conviction. Scalia, on the other hand -again joined by Thomas, but also by the more liberal justices Breyer and Stevens - insisted that the Constitution did not permit, because the Framers would not have permitted, the Tennessee courts to so dramatically change the rules of the game in the course of a criminal case. It is, Scalia wrote, one of the most “widely held value-judgment[s] in the entire history of human thought” — and one incorporated into our Constitution at the founding — that a court “cannot make murder what was not murder when the act was committed.”p. Another noteworthy instance of a justice throwing out the cartoon court’s ideological playbook was Breyer’s vote in Good News Club v. Milford Central School , a First Amendment case. As he had in last year’s Mitchell v. Helms — where the court held that the First Amendment’s Establishment Clause permitted governments to help students by loaning educational materials and equipment to private and religious schools — Breyer again parted company with his liberal strict separationist colleagues.p. He joined Thomas’s majority opinion stating that the First Amendment does not permit a public school to discriminate against a student group on the basis of its religious activities and expression. If other private groups are permitted to meet after hours on school grounds, these two supposed opponents agreed, then the Constitution neither requires nor permits government officials to single out religious groups for unfavorable treatment.p. >>The Good News decision not only takes us beyond the caricatures, like Kyllo and Rogers. It also provides additional support for efforts to increase parental choice in education by allowing low-income parents in failing districts to choose religious schools for their children and for proposals to better serve people in need of social and other services by permitting religious groups to provide government-funded assistance. More generally, Breyer’s votes in Mitchell and Good News illustrate the growing acceptance of the view — one the partisan cartoon would tag as “conservative” — that the Constitution prohibits government establishment of religion in order to protect religious freedom, but does not require government to sweep religious expression and activity from public life.p. Finally,probably no justice has been more often caricatured — whether out of cruelty, condescension, ignorance or good-faith disagreement — than Clarence Thomas. More and more, though, thoughtful observers and scholars of all political stripes are taking notice of his well-crafted, rigorous and challenging opinions. Not only did he author the lead opinions in Mitchell and Good News Club , he also issued provocative separate opinions in a number of other First Amendment cases.p. In FEC v. Colorado Republican , he led the four dissenters, arguing powerfully that however you dress them up, restrictions on political parties’ efforts to support their preferred candidates cut to the heart of the rights guaranteed by the First Amendment. Along the way, he got in one of the term’s best lines, expressing “baffle[ment]” that “this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend.”p. And in a concurring opinion in Lorillard Tobacco v. Reilly, the tobacco-advertising case decided on the last day of the term, he continued his efforts to afford commercial speech the full protection that, in his view, the First Amendment requires. (It’s worth noting, as long as we’re debunking stereotypes, that Thomas has frequently been joined in this effort by “liberal” Justices Ginsburg and Stevens.)p. Now, there’s no denying that stories of partisan justices, scheming law clerks and a court ripped apart by culture wars make for good copy. And like any caricature, the cartoon that results is not entirely inaccurate: Roadrunners don’t actually burn up desert highways, either, chased by coyotes on Acme rockets, but they are pretty speedy little birds. It’s true that the court decides many close and difficult cases — if they were easy, after all, they would not end up in the Supreme Court. It’s true that one can identify “blocs” of philosophically simpatico justices; that some lean left while others lean right; and that, in many close cases, the swing votes of Justices O’Connor or Kennedy determine the outcome. It’s also true, though, that the court is unanimous, or nearly so, far more oftenthan it is ideologically splintered.p. In the end, Bush v. Gore notwithstanding, the court is more of a good-faith intellectual community than a fever swamp of ideological intrigue.That’s the image — not the cartoon — we should keep in mind.

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