The Roberts Court - The True Bush Legacy?

FORECASTS & TRENDS E-LETTER
By Gary D. Halbert
July 10, 2007

IN THIS ISSUE:

1. You Heard It Here First

2. Two Recent High-Profile Decisions

3. The Liberal Media’s Predictable Reaction

4. Current Make-Up and Future Of The Court

5. What Might The Future Hold?

Introduction

The appointment of John Roberts and Samuel Alito to the United States Supreme Court may well be the true legacy of George W. Bush. These justices, both young men by Supreme Court standards, will have a lasting impact on American law and society long after President Bush is out of office and long after the fate of Iraq is decided.

If you don’t think the composition of the Supreme Court matters, think again. The pending vacancies on the Court were the single biggest issue of the 2004 general election, as I predicted in my October 2004 E-Letter (more on that later). During the most recent Supreme Court session, both liberals and conservatives were watching closely to see if Bush’s nominees would sway the Court one direction or the other.

The Court heard 75 cases from October 20, 2006 to June 28, 2007, which sounds like a lot to me, but I discovered that the number of cases heard by the Court has declined steadily over the last few decades. In fact, they used to hear almost twice as many cases. Many of the cases heard in the latest session, of course, were not “landmark” decisions, but it seems that the Court saved the best for last.

The two most explosive cases were Federal Election Commission v. Wisconsin Right to Life Inc. and Hein v. Freedom From Religion Foundation Inc. In these cases, according to some, the Supreme Court overturned important precedents. Did they? Has the Court swung right?

This week, I’ll examine the impact of these key rulings in the recently concluded session. I will also examine the predictable reaction of the liberal media to these rulings, as well as discuss the current make-up of the Court and its possible future, including which of the current justices are likely to retire next. Will George Bush have the chance to name another justice? Will a likely Democrat president in 2008 be able to reverse what many consider a conservative trend in the Court, or is it even possible?

It looks like we have a lively E-Letter ahead of us, so let’s get started.

You Heard It Here First

If you have been a loyal reader of my e-letter for a few years you may remember that back in October of 2004 I wrote that a major election issue was the likelihood that the next president would nominate as many as three Justices to the Supreme Court.

Here is what I wrote at that time:

“One of the most important issues is the fact that the next President of the United States will likely appoint three Justices to the Supreme Court, potentially changing the balance of the Court one way or the other for many years to come.”

Why was this an important issue? For the simple reason that the Court was likely to hear several important and potentially landmark cases, as I will discuss in more detail later on. Conservatives felt that George Bush would have the opportunity to replace as many as three Justices who should steer the Court away from its sometimes-liberal interpretations of the law.

Unfortunately, Bush stumbled out of the gate as I pointed out in my October 11, 2005 E-Letter. First, he nominated John Roberts, a relatively unknown DC Circuit Court judge only 50 years old, initially to replace Sandra Day O’Connnor. Making matters worse, it seemed, Bush renominated Roberts as Chief Justice shortly after the death of Justice Rehnquist, thereby passing up Justice Antonin Scalia, the senior sitting Justice and a staunch conservative.

Then, he outraged conservatives even more by nominating one-time Democrat Harriet Miers to the High Court to replace Sandra Day O’Connor. Though Bush defended her up to the end, Miers did the smart thing and withdrew her name from consideration. There is still debate about why Bush nominated a White House staff lawyer to the Supreme Court, and I offered my personal opinion in my October 11, 2005 E-Letter:

“Many conservatives are still baffled as to what just happened, but it is clear that Bush simply wasn’t up for the fight. As noted above, conservatives have waited 20 years or longer for this fight. We were ready. Bring it on. Despite our policy disappointments with Bush, and his big spending, we believed that when it came to the Supreme Court, he would keep his repeated campaign promise. He didn’t .

It is still unclear why Bush was not ready for a fight. Washington does this to people, especially conservatives who don’t really know how to fight ideological and no-holds-barred battles. Argue/justify it any way you want – low approval numbers, war in Iraq not going well, advisors giving him bad advice, etc.

Whatever the reasons, President Bush caved. He was not willing to endure the political fight that would have followed if he had nominated one of the truly conservative choices for the Supreme Court. He broke his promise, just like his father before him.”

Fortunately, on October 31, 2005, President Bush nominated Samuel Alito, a much more experienced and conservative choice.

Two High Profile Decisions

With the confirmation of Justice Alito, the stage was set, and the obvious question was how the new make-up of the Supreme Court would affect its decisions. Of the 75 cases heard by the Supreme Court this term, two of them have drawn considerable recent attention.

Federal Election Commission v. Wisconsin Right to Life Inc. dealt with the lightning rod issue of freedom of speech. This case centered on the unconstitutionality of a specific portion of the McCain-Feingold Campaign Finance Reform Bill passed in 2002. The specific issue was whether so called issue ads or “electioneering communications,” as the Bill refers to them, can be aired 30 days prior to an election. In a 5-4 decision, the Court found that this restrictive portion of McCain-Feingold was indeed unconstitutional. Chief Justice Roberts had this to say in his majority opinion:

“The First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the 'functional equivalent' of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy.

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

This is clearly a victory for free speech and for its place in the political process. This is not to say that there are not some negative factors associated with issue ads and other such participation, but they are a price to be paid for the freedom and ability to comment on and potentially influence an election. Conservatives, however, viewed this as only a partial victory since most wanted McCain-Feingold overturned in its entirety.

On the liberal side, the following portion of Justice Souter’s dissent warns of the potential negatives associated with this decision.

“After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”

This may be true in part (more on that to follow). The Federal Election Commission is considering the ruling and may adjust or create regulations as needed to accommodate it.

Critics, of course, blasted the decision as an opening of the floodgates for corporations and unions to slam politicians with issue ads and, in effect, aid their preferred candidate. This is a very narrow view, however, as the ruling allows all advocacy groups the same participation. The entire spectrum of groups from the NRA to the ACLU and everyone in between can air these ads – for better or worse.

The latest ruling does mean we will all have to watch more political commercials come each election season, and some of them can be really awful, but that is a small price to pay for everyone having the ability to be heard.

It is also likely that 21st century media elements (ie – the Internet) played a roll in this decision, as political blogs and videos on YouTube proliferate. Of course, each of the presidential candidates not only has a MySpace page, but also a paid team of Internet consultants. My, how things have changed! Perhaps the Justices took the Internet into consideration in making their decision.

Hein v. Freedom From Religion Foundation Inc. is another of the controversial cases decided by the Court. The Freedom From Religion Foundation (FFRF) sued the Secretary of Labor, complaining about the use of money appropriated by Congress which was used to fund conferences held to promote President Bush’s Faith-Based and Community Initiatives.

The President created this program through a series of Executive Orders. The FFRF maintained that the conferences function as propaganda vehicles for religion and therefore violate the establishment clause of the First Amendment.

The Seventh Circuit Court of Appeals reversed a former District Court decision, which maintained that taxpayers have the right to challenge an executive branch program that promotes religion and is financed by congressional appropriation, even if the program was created by presidential Executive Order. In another 5-4 ruling, the Supreme Court overturned the Circuit Court ruling. Justice Alito had this to say as he delivered the majority opinion of the Court:

“Respondents set out a parade of horribles that they claim could happen.

For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened.

In the unlikely event that any of these executive actions did take place, Congress could quickly step in.”

Justice Souter delivered the dissent in which he said:

“The controlling opinion closes the door on these taxpayers because the executive branch, and not the legislative branch, caused their injury. I see no basis for this distinction in either logic or precedent.

Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purposes of promoting religion. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury.”

Interestingly, Justices Scalia and Thomas (and many conservatives) did not think the ruling noted above went far enough. They would have preferred that the precedent established in the Flast v. Cohen case in 1968, which formed the basis for the Hein v. Freedom of Religion case, be struck down entirely. In fact, Justices Scalia and Thomas were quite critical of Chief Justice Roberts for not overturning the Flast v. Cohen precedent.

The tendency for Justices Scalia and Thomas to feel it necessary to overturn what they feel is “bad law” is very important and could have far reaching impact on the Supreme Court in the future. No doubt, we will see more Supreme Court cases where Scalia and Thomas want to overturn precedents that they consider to be bad law, whereas Roberts will likely only agree if he feels the prior precedent was in fact unconstitutional.

On this point, there are many conservatives who do not believe that Roberts is conservative enough, and I just might agree. However, his greatest value may come some years down the road when the Court shifts to a more liberal makeup again, and it is Roberts (the likely Chief Justice for 2-3 decades or more) stopping the liberals from savaging precedents… A stretch perhaps, but think about it in terms of Hillary or some other liberal being president for eight years.

There were many other decisions handed down by the Court in the latest session, some of which were also seen as a move to the right. For example, in the National Association of Home Builders v. Defenders of Wildlife case, liberals say that the Supreme Court gutted a key provision in the endangered species law.

In Morse et al. v. Frederick, also known as the “Bong Hits 4 Jesus” case, the Court held that schools could limit students’ expressions of free speech when the message promotes illegal drug usage. The case gets its name from a banner held up by a student during a public parade that said “Bong Hits 4 Jesus.” The principal of the school confiscated the sign and suspended the student, and was promptly sued (naturally) for abridging the student’s right of free speech.

Predictable Reaction By The Liberal Media

The reaction from the mainstream media (and liberals in general) to these rulings has been swift and predictable. That reaction can be summed up as follows: an ideologically polarized Court, now right-leaning, has recklessly overturned the sound precedent of prior rulings. Look out! Roe v. Wade is next. Brown v. Board of Education can’t be far behind!

The liberals appear to be in a total panic. Why? They feel somehow hoodwinked that Roberts and Alito are actually right-leaning (I am stopping short of labeling them conservative as it is far too early to say), even though both Justices passed the crucial “litmus” tests of abortion and stare decisis (literally to stand by things previously decided). In the liberals’ view, both Roberts and Alito agreed that they would support prior legal precedents, even if they may not necessarily agree with them.

So, have Roberts and Alito now gone back on their word? No, they have not. Both agreed that it was not likely that they would engage in a wholesale campaign of slashing and burning previous decisions with which they may disagree. Modifiying or refusing to extend such precedents, as in the cases we discussed above, is another matter. This may seem like I am splitting hairs, but it is a very important distinction.

The talking heads and liberal pundits are also raging because of the number of 5-4 decisions rendered by the Court this term. Norman J. Ornstein, a frequent contributor to Roll Call and the Washington Post, had this to say:

“We have fallen into a pattern of key decisions that come down 5-4, with Roberts and the more rigid Samuel Alito joining Antonin Scalia, Clarence Thomas and Anthony Kennedy to throw out precedents established only a few years ago, all driven not by changes in the law or objective deliberations over facts, but by the simple fact that Sandra Day O'Connor left the court and was replaced by a more conservative justice.”

So, 5-4 decisions favoring liberal causes are OK, but when they go against the liberal mindset, we have a problem. What nonsense! Like Justice Kennedy, Sandra Day O’Connor had become a moderate and a swing voter. Simply because Justice Alito’s interpertations of the law differ from a liberal slant doesn’t invalidate them, nor does it even mean that O’Connor would not have voted as Alito did.

This kind of ranting is typical throughout the liberal media. Again they feel betrayed because Roberts was supposed to be a consensus builder who would strive for more 7-2 or even 8-1 decisions. It could well be that Roberts discovered, given the ideological gap between the two camps in the Court, that consensus building was impossible. In any event, the liberals feel that they were hoodwinked.

Current Make-Up & Future Of The Court

The “Roberts Court” does seem to be evenly divided. On the left are Justices Stevens, Souter, Bryer and Ginsburg. On the right are Justices Scalia, Thomas, Alito and Chief Justice Roberts. Justice Kennedy is now the Courts lone swing vote.

This 4-1-4 balance explains the series of supposedly conservative 5-4 decisions by the Court this term. (Click here to see the Court’s recent decisions.) The importance of Justice Kennedy cannot be stated strongly enough. He was the linchpin of every critical decision this term.

Of course that begs the question: If the Court savaged precedent in Federal Election Commission v. Wisconsin Right to Life Inc. and Hein v. Freedom From Religion Foundation Inc., why did the moderate Justice Kennedy support those rulings? The answer is, of course, that they did not savage precedent, as is evidenced by Justices Scalia and Thomas lamenting that the Court did not go far enough and stopped short of overturning what they considered to be bad law. So, in other words, Kennedy probably went along because he knew the rulings could have been even worse from his point of view.

This is the key to the Roberts Court. While not overturning precedent, Roberts has certainly reinterpreted and restricted it. This is an incremental approach that clearly does not sit well with Justices Scalia and Thomas, but is what can be expected from Roberts. So why not simply overturn as opposed to limit and restrict?

There are likely two answers. First, Justice Kennedy would almost certainly oppose overturning precedent outright. Second, just because something is “bad law” does not make it unconstitutional, and that is the test that must be met in a Roberts led Court.

While Justice Kennedy generally sided with the conservative justices in the first term of the new Court, there is no guarantee he will always do so. In fact, in one of the Court’s more important cases of the year, Kennedy refused to accommodate either side. He voted with the four conservatives to strike down racial-integration plans championed by school districts in Seattle and Louisville, KY, but he refused to go along with the conservatives in joining an opinion by Chief Justice Roberts that exuded hostility to all race-based solutions to racial inequalities.

So Kennedy remains the lone swing vote. Given that, credit must be given to Chief Roberts for his incremental approach that convinced Kennedy to go along with the decisions discussed above.

[Side note: your editor wonders how the Bush administration that ineptly served up Harriet Miers, and passed over Justice Scalia for Chief Justice, could have suddenly been so smart to realize that Justice Roberts was the best choice to lead the High Court. Or was it just luck?]

So, what has to happen for this 4-1-4 balance to change? Well, frankly, one of the right-leaning justices or Justice Kennedy will need to retire or die during a Democrat administration. The replacement of Justices Stevens (age 87) and\or Ginsburg (cancer) by a future Democrat president does nothing to upset the balance.

Who is likely to leave the Court next? I have to go with Justice Stevens, a 31year veteran of the Court, but I assume he will wait to see if a Democrat is elected in 2008, and if so, then step down in early 2009. Again, it isn’t likely to make any difference in the balance of the Court.

What about President Bush? Will he have the chance to appoint another justice? Very unlikely. Neither Stevens or Ginsburg will retire prior to Bush leaving office, if their health permits. But, if a member of the Court died prior to Bush leaving office, then he would have that chance.

I wonder, though, what he could do with it? Let’s face it, Bush is embattled and has lost a great deal of leverage. That weakness combined with the recent shift in the Court would likely mean that Bush would have trouble getting another potentially conservative judge confirmed before his term expires.

It looks as though the current 5-4 split will likely continue for the foreseeable future. However, I would not expect Justice Kennedy to always vote on the right. Who knows, the next term might be a slew of 5-4 decisions slanting left. (The media will still scream about that, right?)

The Liberals’ Real Concern

While there is much weeping and wailing on the part of liberals about the Supreme Court’s alleged turn toward the right, I don’t think the cases discussed above are their real concern. As I noted, conservatives did not consider either of these decisions total victories, and would have preferred more aggressive action to overturn precedent.

Instead, I think the liberals are gearing up for future cases that may come before the Court which are of much greater importance to them. This is what I pointed out in my October 2004 E-Letter, even before we knew that two justices would be replaced by George Bush:

“To better understand how and why the Democrats have come together as they have, I think it is important to look ahead to some issues that are very likely to come before the Supreme Court in the next several years:

Gun Control – No matter what your feeling about the gun issue, it is very likely that the Supreme Court will face challenges to current gun laws, as well as be called upon to rule on new gun legislation. The Democrats, being for stronger gun control, would love to see a liberal-leaning Supreme Court that could weaken the Second Amendment.

Abortion– Liberals fear that a conservative Supreme Court would weaken current law regarding a woman’s right to terminate her pregnancy. So the Democrats would like a liberal Supreme Court to maintain the status quo.

Gay Rights – Discrimination against homosexuals, and specifically the issue of same-sex marriage, are almost certain to face the Supreme Court within the next few years. A liberal Supreme Court would likely see the benefits of legal marriage extended to same-sex couples.

Environment– The environmental movement is also interested in having a liberal Supreme Court. This is especially true with oil prices well above $50 per barrel. There will be increasing pressure to drill for oil in environmentally sensitive areas. A liberal Court would be helpful to stop such exploration, no matter what the economic consequences.

Tort Reform – If you think tort reform is a good idea, you can forget it if Kerry is elected. Both Kerry and Edwards are lawyers and Edwards, a trial lawyer, made his fortune suing doctors. I’m confident that neither of these attorneys will ever agree to tort reform. After all, trial lawyers are one of their largest support groups. And if they make the Supreme Court more liberal, any future Republican administration could find it impossible to enact any meaningful tort reform.

Legislation From The Bench– Activist judges often resort to creating law when handing down rulings. Recent examples include the issue of including “under God” in the Pledge of Allegiance, endorsement of same-sex marriage and overruling a ban on partial-birth abortions. Many of these cases end up at the Supreme Court since they sometimes involve a deviation from controlling legislation. A liberal Supreme Court would likely support judges who create law in the name of liberal causes.

There will be other important issues that will come before the Supreme Court in the next four years, but space prohibits a discussion of all of these topics. Suffice it to say that whether the Supreme Court tilts conservative or liberal, it could have a very dramatic effect on the law of the land in the next couple of decades.”

While none of the above issues has so far come before the Court, they are almost sure to follow in one form or another in the coming years.

Conclusions – The True Bush Legacy?

If you listen to the mainstream media, you would believe that George W. Bush will be remembered as one of the worst presidents in American history. Even many in the conservative base, myself included, are disillusioned with the Bush 43 presidency. He has let us down in so many ways. Some would conclude that Bush’s only legacy will be the war in Iraq and the fact that he narrowly kept two very liberal challengers out of the White House - Al Gore in 2000 and John Kerry in 2004.

But as disillusioned as conservatives may be with President Bush today, his overriding legacy may be the appointments of John Roberts and Samuel Alito to the Supreme Court. While it’s far too early to tell whether a permanent shift to the right has occurred, the appointments of Roberts and Alito did “even up the sides” between conservative and liberal justices. Of course, Justice Kennedy is still a swing vote that could go either way.

Even so, I think the Supreme Court is likely to remain at least moderately favorable to conservative rulings in the next decade or so IF – and it is a big if - Chief Justice Roberts continues his incrementalist approach and avoids radical changes to standing legal precedents. In so doing, he may be able to keep Justice Kennedy – the only remaining “swing vote” – on the side of the conservatives more often than not.

The mainstream media, and liberals in general, will pull out all of the stops to make their case to the Supreme Court regarding issues of importance to them in the years to come. Whether such media pressure will have any significant effect on future Court decisions remains to be seen. My thinking is that, considering the lifetime appointment and the gravity of their positions, media pressure won’t mean much to any of the justices. Let’s hope I’m right.

As far as what the future holds in regard to the make-up of the Court, I don’t expect to see any further vacancies occur during the Bush administration unless death or health issues intervene. Even if a Democrat does gain the presidency in 2008, the justices most likely to retire – Stephens and Ginsburg - are liberal anyway, so liberal appointments shouldn’t affect the Court’s conservative/liberal balance.

For the foreseeable future, all eyes will be on Justice Kennedy (age 70), since he is viewed as now being the only swing vote. Kennedy’s death or retirement would likely give a future president the ability to have a significant and long-lasting effect on the balance of the Court – one way or the other. Ironically, conservatives should wish Justice Kennedy good health, especially if Hillary or Obama manages to win the White House next year.

As always, your comments and/or suggestions are welcomed.

Very best regards,

Gary D. Halbert

SPECIAL ARTICLES:

Supreme defeat for liberals.
http://www.ft.com/cms/s/a9407c8a-2d90-11dc-939b-0000779fd2ac.html

Justice Kennedy, The Power Broker
http://www.msnbc.msn.com/id/19649904/site/newsweek/

What happens if we abandon Iraq?
http://www.tcsdaily.com/article.aspx?id=070607A

Our Own Worst Enemy (good read from Gen. Haig)
http://online.wsj.com/article/SB118403572723161796.html?mod=opinion_main_commentaries