State of the Supreme Court

Transcription

1 State of the Supreme Court The Justices Record on Individual Liberties by the Institute for Justice

2 Contents Introduction and Summary Methodology Summaries of Amicus Cases Summaries of Other Major Cases Analysis Conclusion Acknowledgments

3 Introduction The nine justices of the U.S. Supreme Court do not enjoy the notoriety of the President, congressional leaders, or even major Cabinet secretaries. Unlike other major governmental figures, they do not actively seek the media limelight. Yet, their impact on the lives of the American people is more important than that of most wellknown government officials. The U.S. Supreme Court is a unique institution it is considerably well insulated from democratic processes and is able to check majoritarian abuses and the excesses of the legislative and executive branches. This puts the Court in the best position to defend individual liberties by upholding our Constitution and the rights recognized therein. This is the framework that the Framers of the Constitution envisioned over two hundred years ago as the best way to ensure our continued freedom. Therefore, it is from within this framework that we evaluate the performance of the justices, and the Supreme Court as a whole, in championing individual liberties and keeping the power of the government from extending beyond its constitutional limits. As is demonstrated below, the current makeup of the U.S. Supreme Court is tilted towards liberty, but only precariously so. It is widely predicted that at least one justice will step down during the next administration, and the next President might have the opportunity to appoint as many as four new justices to the bench. The appointments of the next President thus will likely have an enormous impact on the makeup of the Court and the future of personal liberties well into the 21st Century. The obvious implication is that the presidential election is critical not only for reasons of legislation and policy, but also because it will have a lasting effect on the ideological composition of the Court long after November s winner has left office. It is important, to be sure, to point out that there are no guarantees in predicting how appointees of a particular President will behave. Justice Souter, for example, was appointed by former President Bush and has surprised many by voting more frequently than other Reagan-Bush appointees to uphold the power of government over individuals. Nevertheless, it is notable that the only two Clinton appointees on the Court (Ginsburg and Breyer) fare very badly when their decisions are evaluated in terms of safeguarding personal freedom, coming in seventh and eighth places respectively. Summary In an attempt to examine the current Court s perspective on a wide range of issues that impact our liberty, we have chosen to evaluate two sets of decisions: 1. All U.S. Supreme Court decisions from in cases where the Institute for Justice filed an amicus curiae, or friend of the court, brief; 2. All major decisions from the last four Terms, October 1996-October 1999, implicating vital personal liberties and/or the extent of, the federal government s power. 1 After looking at these cases closely, we have reached some encouraging conclusions about the current Supreme Court. The Court has been quite reliable in protecting individual liberties. Out of 45 cases examined, 35 (or 78 percent) resulted in a pro-liberty decision. The Court has been very receptive to the views advocated in briefs filed by the State of the Supreme Court 1

4 Institute for Justice. Out of 18 cases in which the Institute filed amicus curiae briefs with the Supreme Court, the Court voted for liberty (and for our ideas) 14 times (or 78 percent). The pro-liberty perspective of the Court applies to a wide range of issues. It has, for example, generally resisted attempts by government to abridge free speech, interfere with private property rights, and classify Americans on the basis of race. Beneath this good news, however, runs an ominous undercurrent. A split in the Court puts defenders of liberty in a precarious position. Of the 35 pro-liberty decisions examined, 19 (or 54 percent) were decided by a 5-4 vote. In 14 (or 74 percent) of these 19, 5-4 decisions, the same four justices (Breyer, Ginsburg, Souter, and Stevens) voted in a manner hostile to individual liberty. The importance of the next appointment to the Court is therefore obvious. Had one more justice consistently joined the Breyer-Ginsburg- Souter-Stevens block, nearly half of the Court s recent pro-liberty decisions would have come out the other way. If this block gains another vote in the next four years, the negative consequences for liberty will be profound. Though the Court favored liberty overall, certain justices took a dim view of particular constitutional rights. The Court s 5-4 split was especially stark on issues of racial neutrality and limiting government power at the federal level. Justice Breyer and Chief Justice Rehnquist were particularly hostile to claims based on the First Amendment right to free speech. Justices Stevens and Ginsburg opposed upholding private property rights quite strongly. In our last analysis of the Court, Justice Kennedy seemed the most vigorous supporter of individual liberties, with a perfect record on the cases we characterized as involving economic liberty. Three years later, he has been narrowly surpassed by Justice Thomas as the most consistent defender of individual liberties on the Court. Overall, the justices have remained relatively consistent in their outlook, with the same five justices (Thomas, Kennedy, Scalia, Rehnquist, and O Connor) far ahead of the other four (Souter, Ginsburg, Breyer, Stevens) in defending individual freedoms. After a brief explanation of our methodology, summaries of the cases in which we filed amicus curiae briefs are provided as are summaries of the other major cases from the past four Terms implicating liberty. Following these descriptions we conduct an in-depth analysis of the justices decisions and explain our findings more fully. Methodology Assessing the decisions of the Supreme Court and the opinions of its individual justices is a difficult task. Any grades or scores will obviously be affected by both the cases selected and the opinions of the authors. In choosing the cases, we avoided issues that are divisive among civil liberties advocates (like abortion) and instead focused on cases that involve clear violations of liberty or the unwarranted extension of government power. We realize that our selection of cases will elicit disagreement from across the ideological spectrum. Many liberals, for instance, dispute our insistence that the Constitution does not allow government to classify Americans by race. Many conservatives, on the other hand, disagree with our belief that the Court must curb government s abuse of asset forfeiture laws by enforcing those safeguards contained in the Bill of Rights. State of the Supreme Court 2

5 If the law were determined by a hard-and-fast set of rules not open to interpretation, the Supreme Court would not be necessary. But the judiciary must apply evolving legal principles to the particular facts of each case, and this leads to opinions of varying complexity and, more importantly, varying weight. Sometimes the Court may decide a case in a pro-liberty fashion in that instance but simultaneously fail to seize the opportunity to strengthen liberty in a broader, more precedent-oriented sense. However, rather than introduce an untenable amount of subjectivity by scoring the strength of opinions on some sort of numeric scale, each justice was assigned a straight-forward pro-liberty or anti-liberty grade based on his or her vote in each case. In this study, the justices were graded in two situations: (1) cases in which the Institute for Justice filed amicus curiae briefs, and (2) other decisions that involved important issues of liberty. Although the second set of case summaries is divided by Term, the justices scores are instead broken down by issue in the accompanying charts. This prevents the composition of a particular Term s caseload from skewing a justice s, or the Court s, score. We feel that evaluating the justices by issues rather than by Term produces a more accurate portrayal of both the Court s and the justices records in protecting a free society. Summaries of Amicus Cases Lucas v. South Carolina Coastal Council, 505 U.S (1992) (Pro-Liberty). The Court held, 6-3, that restrictions on the use of private property denying the owner all economically viable use of his land constitute a taking under the Fifth Amendment unless such restrictions are supported by common-law principles. Majority (Pro-Liberty): Scalia, Kennedy, Rehnquist, O Connor, Thomas (White) 2 Dissent (Anti-Liberty): Stevens, Souter (Blackmun) The Court and IJ agreed that the State of South Carolina could not enact a restriction depriving Lucas of all of his land s economic value without just compensation unless he lacked a reasonable expectation of being able to build on his land at the time he purchased it. This was a victory for property rights, especially in light of the fact that the state enacted the restriction in question 18 months after Lucas purchased his property. Kennedy Thomas Rehnquist Scalia O'Connor Breyer Souter Ginsburg WHERE THE JUSTICES STAND ON IJ AMICUS CASES Stevens Pro-Liberty Amicus Briefs 46% 39% 33% 33% 78% 78% 78% 72% 67% Anti-Liberty FIGURE 1 Cases: 44 Liquormart, Inc. v. Rhode Island, Agostini v. Felton, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, Bennis v. Michigan, Boy Scouts of America v. Dale, Bush v. Vera, City of Cincinnati v. Discovery Network, Inc., Dolan v. City of Tigard, Greater New Orleans Broadcasting Ass n, Inc. v. United States, Lucas v. South Carolina Coastal Council, Mitchell v. Helms, City of Monterey v. Del Monte Dunes at Monterey, Ltd., Saenz v. Roe, Suitum v. Tahoe Regional Planning Agency, Troxel v. Granville, United States v. James Daniel Good Real Property, United States v. Morrison, and Zobrest v. Catalina Foothills School District. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (Pro-Liberty). The Court held, 5-4, that the First Amendment s Establishment Clause did not prevent a public school district from providing an interpreter for a deaf child at a private religious school. State of the Supreme Court 3

6 Majority (Pro-Liberty): Rehnquist, Scalia, Kennedy, and Thomas (White) Dissent (Anti-Liberty): O Connor, Souter, and Stevens (Blackmun) In cases such as this, in which the government s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace,... such an interest is per se illegitimate. Justice Clarence Thomas 44 Liquormart, Inc. v. Rhode Island The Court helped lay the groundwork for school choice in this decision. The majority pointed out that the federal program for disabled students provides services for all special-needs children, regardless of which school they attend. It therefore held, as IJ argued, that the fact a religious school is an available option for parents under this program does not constitute government endorsement of religion. Rather, it enhances the freedom of parents to choose the school that is best for their children. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (Pro-Liberty). The Court held, 5-4, that the government s use of a civil forfeiture statute to seize real property without notice and a hearing violated the Fifth Amendment s Due Process Clause. Majority (Pro-Liberty): Kennedy, Stevens, Souter, Ginsburg (Blackmun) Dissent (Anti-Liberty): Rehnquist, O Connor, Thomas, Scalia This decision sent a message that government cannot indiscriminately seize private property through forfeiture. As IJ advocated, the Court held that private property cannot be confiscated without basic procedural safeguards. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (Pro-Liberty). The Court held, 6-3, that a city ban on the distribution of commercial publications in sidewalk news racks violated the First Amendment. Majority (Pro-Liberty): Stevens, O Connor, Scalia, Kennedy, Souter (Blackmun) Dissent (Anti-Liberty): Rehnquist, Thomas (White) The majority and IJ agreed that the city had unconstitutionally abridged commercial speech. Cincinnati had urged that commercial speech restrictions should simply require a rational basis, but the Court correctly applied heightened scrutiny in finding that the fit between the challenged ordinance and the city s interest in restricting speech was not reasonable. Dolan v. City of Tigard, 512 U.S. 374 (1994) (Pro-Liberty). The Court held, 5-4, that a city s attempt to tie a citizen s building permit to the establishment of public paths on her property was an unconstitutional taking under the Fifth Amendment. Majority (Pro-Liberty): Rehnquist, O Connor, Scalia, Kennedy, Thomas Dissent (Anti-Liberty): Stevens, Souter, Ginsburg (Blackmun) The Court and IJ agreed that the conditions placed on Dolan s building permit were not sufficiently related to the projected impact of her proposed construction. This decision makes it more difficult for the government to force pri- State of the Supreme Court 4

7 vate citizens to bargain away their property rights and indicates a move by the Court to elevate property rights to the status of other fundamental constitutional freedoms. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (Anti- Liberty). The Court held, 6-3, that the Secretary of the Interior did not exceed his authority under the Endangered Species Act when he designated private lands that could not be improved because the habitat modification would harm endangered species. Majority (Anti-Liberty): Breyer, Ginsburg, Kennedy, O Connor, Souter, Stevens Dissent (Pro-Liberty): Rehnquist, Scalia, Thomas By upholding the Secretary s incredibly broad interpretation of the word harm in the Endangered Species Act, the Court allowed the government to extend its power over private property to unconscionable proportions. As Justice Scalia pointed out in dissent, the Act was intended to prevent the hunting and killing of endangered animals and not to conscript unlucky property owners land to national zoological use. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (Pro-Liberty). The Court unanimously struck down a Rhode Island statute that prevented retail liquor stores from including prices in their advertisements. Majority (Pro-Liberty): Unanimous (principal opinion authored by Stevens). This was a victory in the fight against pointless, paternalistic laws. The Court held that Rhode Island s restriction on commercial speech violated the First Amendment. It also agreed that the Twenty-First Amendment did not increase the government s power to abridge free speech. Even more encouragingly, Justices Stevens, Kennedy, Ginsburg, and Thomas also seemed receptive to IJ s suggestion of eliminating the artificial distinction between commercial and non-commercial speech and applying the same strict scrutiny standard to restrictions on both types of speech in certain instances. Bennis v. Michigan, 516 U.S. 442 (1996) (Anti- Liberty). In a 5-4 decision, the Court upheld the forfeiture of an innocent woman s interest in her car after her spouse was arrested for using the car to solicit a prostitute. Majority (Anti-Liberty): Rehnquist, Thomas, Ginsburg, O Connor, Scalia Dissent (Pro-Liberty): Stevens, Kennedy, Souter, Breyer The Court disagreed with IJ and failed to overturn the outrageous confiscation of a woman s interest in her car even though she did nothing wrong. This decision again undermined private property rights. The forfeiture was challenged as a violation of due process as well as of the Takings Clause, and the dissent correctly noted that forfeiture of an innocent citizen s property should not be tolerated. Bush v. Vera, 517 U.S. 952 (1996) (Pro-Liberty). The Court held, 5-4, that three majority minority voting districts in Texas were gerrymandered on the basis of race in violation of the Fourteenth Amendment s Equal Protection Clause. Majority (Pro-Liberty): O Connor, Kennedy, Thomas, Rehnquist, Scalia Dissent (Anti-Liberty): Stevens, Souter, Ginsburg, Breyer State of the Supreme Court 5

8 This decision presents a formidable obstacle for those who would draw district lines on the basis of race. Taking a stance consistent with IJ, the Court struck down a Texas plan that contained districts of shapes that could only be termed as bizarre, thanks to block-by-block racial data that allowed the district lines to be contoured to encompass minority neighborhoods. Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) (Pro-Liberty). The Court unanimously held that a landowner s claim against a planning agency was ripe because its blanket restriction against construction constituted a final government decision. Majority (Pro-Liberty): Unanimous (principal opinion authored by Souter). In another win for property rights, the Court s unanimous decision focused on the ripeness of Suitum s takings claim. The Court held that her claim was ripe because, as IJ and others pointed out, the government planning agency had told her she could not build on her land at all, and that determination constituted a final decision. Justices Scalia, O Connor and Thomas receive special commendation because of their concurrence pointing out that there is no need to address the value of any Transferable Development Rights (which the planning agency had offered as an alternative in order to preclude Suitum s claim) to decide the ripeness issue. Agostini v. Felton, 521 U.S. 203 (1997) (Pro- Liberty). The Court held, 5-4, that public school teachers could offer remedial instruction to disadvantaged students in religious schools through the federal government s Title I program just as such instruction is offered to disadvantaged students in public and non-religious private schools. Majority (Pro-Liberty): O Connor, Rehnquist, Scalia, Kennedy, Thomas Dissent (Anti-Liberty): Souter, Ginsburg, Stevens, Breyer In a victory with significant ramifications for school choice, the Court overruled Aguilar v. Felton, 473 U.S. 402 (1985), which had held that the same program violated the First Amendment s Establishment Clause. The Agostini decision correctly emphasizes that aid programs are constitutional so long as religious and non-religious options are treated equally. Neither logic nor history supports the Court s apparent assumption that complete innocence imposes no constitutional impediment to the seizure of [one s] property simply because it provided the locus for a criminal transaction. Justice John Paul Stevens Bennis v. Michigan (dissent) Greater New Orleans Broadcasting Ass n, Inc. v. United States, 527 U.S. 173 (1999) (Pro- Liberty). The Court unanimously invalidated a federal statute banning the broadcast advertising of private casino gambling where the advertising in question was truthful and not misleading. Majority (Pro-Liberty): Unanimous (principal opinion authored by Stevens). Although the Court correctly applied the prevailing test for commercial speech restrictions in this important First Amendment victory, it failed to abolish the unwarranted jurisprudential distinction between commercial and non-commercial speech. Justice Thomas s concurrence was closer to what IJ advocated he said the test should not be applied when the government s interest is to promote consumer ignorance and to State of the Supreme Court 6

9 manipulate consumers market decisions, noting that any restriction tailored to such an interest is per se illegitimate. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) (Anti-Liberty). The Court held, 5-4, that a property owner s takings claim was properly submitted to a jury pursuant to the Seventh Amendment and upheld the jury s award of damages because the city s restriction on the development of oceanfront property was a taking requiring just compensation. It also held unanimously, however, that the rough proportionality test in Dolan should not be extended to all land-use restrictions. Majority (Anti-Liberty): Kennedy, Scalia, Rehnquist, Stevens, Thomas Dissent (Anti-Liberty): Souter, O Connor, Ginsburg, Breyer The majority correctly upheld the jury s determination that the restriction on development was unconstitutional but passed up a chance to strengthen property rights against all land-use restrictions. The Court cited Dolan, acknowledging that any restriction must be related both in nature and extent to the impact of the proposed development but nonetheless disagreed with IJ by limiting the rough proportionality test to the context of exactions and not applying it to cases involving denials of requests to develop property. Saenz v. Roe, 526 U.S. 489 (1999) (Anti- Liberty). The Court held, 7-2, that a California statute limiting new residents welfare benefits for one year to the level they had been receiving in their prior state of residence was unconstitutional under the Citizenship Clause of the Fourteenth Amendment. Majority (Anti-Liberty): Stevens, O Connor, Scalia, Kennedy, Souter, Ginsburg, Breyer Dissent (Pro-Liberty): Rehnquist, Thomas The Court showed signs of reviving the Fourteenth Amendment s Privileges or Immunities Clause when it construed the right to travel as a privileges or immunities issue, as IJ had hoped it would. Unfortunately, however, the majority then misconstrued the right to travel as including the right to receive higher welfare benefits in one s new state of residence. Justice Thomas deserves special recognition for his dissent, which both signals a willingness to revitalize Privileges or Immunities Clause jurisprudence and properly applies the clause to the case at hand. Troxel v. Granville, U.S. LEXIS 3767 () (Pro-Liberty). The Court held, 6-3, that a Washington statute permitting anyone to petition at any time for visitation rights with a child the only requirement being that the judge find that visitation would serve the best interests of the child was unconstitutional as applied to Granville. Granville had two children whose grandparents requested more visitation time than she wished to give them. Majority (Pro-Liberty): O Connor, Souter, Thomas, Rehnquist, Ginsburg, Breyer Dissent (Anti-Liberty): Stevens, Scalia, Kennedy Although this decision marks an important victory for parental liberty, the Court did not go as far as IJ had urged when it failed to recognize that government restrictions on a parent s right to direct the upbringing of his or her child should be subject to strict scrutiny. United States v. Morrison, 120 S.Ct () (Pro-Liberty). The Court held, 5-4, that Congress lacked the power to pass a provision of the Violence Against Women Act that authorized a State of the Supreme Court 7

10 civil remedy for victims of gender-motivated violence in federal court, under both the Commerce Clause and 5 of the Fourteenth Amendment. The First Amendment protects expression, be it of the popular variety or not. Chief Justice William H. Rehnquist Boy Scouts of America v. Dale Majority (Pro-Liberty): Rehnquist, Thomas, O Connor, Scalia, and Kennedy Dissent (Anti-Liberty): Souter, Breyer, Stevens, and Ginsburg Building on its decision in United States v. Lopez, 514 U.S. 549 (1995), the Court held that the federal government cannot regulate activity under the Commerce Clause that is not economic in nature and does not have a substantial effect on interstate commerce. Although this marks an important step in limiting the power of the federal government, the substantial effects test still extends the power of the federal government beyond the original intent of the Framers. Justice Thomas is to be commended for rejecting the substantial effects test in his concurrence. Mitchell v. Helms, U.S. LEXIS 4485 () (Pro-Liberty). The Court held, 6-3, that Chapter 2 of the Education Consolidation and Improvement Act of 1981, which provides for government funds to go directly to both public and private schools to purchase educational materials, does not violate the First Amendment s Establishment Clause. Majority (Pro-Liberty): Thomas, Rehnquist, Scalia, Kennedy, O Connor, Breyer Dissent (Anti-Liberty): Souter, Stevens, Ginsburg Following the path laid out in Agostini and Zobrest, the Court again upheld a school aid program against charges it constituted state endorsement of religion. A four-justice plurality placed its primary emphasis on the fact that the program was neutral, treating students at religious and nonreligious schools equally. Justice O Connor s concurrence, which was joined by Justice Breyer, contained positive language about the constitutionality of private choice programs but also criticized the plurality on two fronts: (1) for placing too much emphasis on the importance of neutrality; and (2) for advocating the removal of the distinction between direct and indirect aid. Boy Scouts of America v. Dale, U.S. LEXIS 4487 () (Pro-Liberty). The Court held, 5-4, that the State of New Jersey s attempt to force the Boy Scouts to accept gay Scoutmasters violated the group s First Amendment freedom of expressive association. Majority (Pro-Liberty): Rehnquist, O Connor, Scalia, Kennedy, Thomas Dissent (Anti-Liberty): Stevens, Souter, Ginsburg, Breyer In a victory for all American private organizations, the Court decided that the State of New Jersey could not overrule the Boy Scouts policy of excluding gays from serving as Scoutmasters. The Court and IJ agreed that the Boy Scouts are an expressive organization and that compelling the Scouts to accept gay Scoutmasters would unconstitutionally hinder the group s ability to advocate its anti-homosexual viewpoint. Addressing the fact that the Scouts anti-gay position is becoming increasingly unpopular, the Court noted that the First Amendment protects expression, be it of the popular variety or not. State of the Supreme Court 8

11 Summaries of Other Major Cases October 1996 Term Abrams v. Johnson, 521 U.S. 74 (Pro-Liberty). The Court held, 5-4, that the State of Georgia was not required to establish two majority-black congressional districts, because to do so would unconstitutionally rely on racial considerations. Majority (Pro-Liberty): Kennedy, Rehnquist, O Connor, Scalia, Thomas Dissent (Anti-Liberty): Breyer, Stevens, Souter, Ginsburg The Court correctly rejected attempts by the Department of Justice and the NAACP to require the Georgia state legislature to draw two distorted majority-black districts, holding that it was impossible to do so without giving an unconstitutional amount of consideration to race. Disturbingly, the dissenters did not seem to believe that drawing district lines on the basis of race was necessarily unconstitutional, and believed that there was a compelling state interest in establishing a second majority-black district, despite its bizarre, iguana-like shape. Printz v. United States, 521 U.S. 898 (Pro- Liberty). The Court, 5-4, struck down on multiple constitutional grounds an interim provision of the 1993 Brady Act requiring state law enforcement officials to implement a federal background check program for those seeking to purchase handguns. Majority (Pro-Liberty): Scalia, Rehnquist, O Connor, Kennedy, Thomas Dissent (Anti-Liberty): Stevens, Souter, Ginsberg, Breyer The Court properly noted that the federal government s commandeering state law enforcement officers into performing duties of a federal nature would expand the power of the federal government immeasurably and impermissibly at the expense of the states. This decision thus placed an important limit on the power of the federal government and safeguarded the dual sovereignty structure of our constitutional system. Reno v. ACLU, 521 U.S. 844 (Pro-Liberty). The Court, 7-2, overturned on First Amendment grounds provisions of the Communications Decency Act of 1996 prohibiting the display or transmission of indecent materials to minors over the Internet. Majority (Pro-Liberty): Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Dissent (Anti-Liberty): O Connor, Rehnquist In an important victory for freedom of speech, the Court correctly perceived that the statute s chilling effect on speech would be particularly severe given its vagueness and the attached criminal penalties. Additionally, the Court reiterated that the Internet is a unique medium, and should not be automatically subject to all restrictions applicable to television and radio. Babbitt v. Youpee, 519 U.S. 234 (Pro-Liberty). The Court, 8-1, struck down a section of the 1983 Indian Land Consolidation Act mandating that fractionable interests in land below a certain value revert from individual Indians back to the tribe as an uncompensated taking. Majority (Pro-Liberty): Ginsburg, Rehnquist, O Connor, Scalia, Kennedy, Souter, Thomas, Breyer Dissent (Anti-Liberty): Stevens Although the statute in question was enacted to correct a land management problem created by the federal government over one hundred State of the Supreme Court 9

12 years ago, the Court properly recognized the importance of the property rights created in the meantime. Its decision stressed the importance of being able to leave your land to the heirs of your choosing and reminded us that the incomegenerating value of property is not the only measure of its worth. A cursory and weak dissent by Stevens upholds the statute as necessary for the government s interest in fostering the development of real estate. Chandler v. Miller, 520 U.S. 305 (Pro-Liberty). The Court, 8-1, struck down a Georgia statute requiring candidates for public office to submit to drug tests as violating the Fourth Amendment. Majority (Pro-Liberty): Ginsburg, Stevens, O Connor, Scalia, Kennedy, Souter, Thomas, Breyer Dissent (Anti-Liberty): Rehnquist The Court correctly prevented an expansion of the State s ability to conduct searches without probable cause. They found the Georgia law served no law enforcement function and that Georgia s interests were not sufficient to meet the stringent requirements for exceptions to Fourth Amendment protection. They eloquently rejected the State s argument that its laws must set an example for its citizenry, instead holding the more important example is the protection of privacy. Distressingly, Chief Justice Rehnquist s dissent suggested that candidates for public office voluntarily surrender their privacy rights. While discussing the abuse of drugs as one of the major problems of our society, he mused that it would take a bolder person than I to say that such widespread drug usage could never extend to candidates for public office such as Governor of Georgia. Glickman v. Wileman Bros. and Elliott, Inc. 521 U.S. 457 (Anti-Liberty). The Court, 5-4, rejected a First Amendment challenge to compulsory funding for generic advertising paid by California citrus fruit growers and administered by a collective organization. Majority (Anti-Liberty): Stevens, O Connor, Kennedy, Ginsburg, Breyer Dissent (Pro-Liberty): Souter, Rehnquist, Scalia, Thomas The majority failed to protect a valuable component of First Amendment freedom: the liberty to refrain from speaking. Instead, it argued that requiring this form of commercial speech was a valid exercise of the federal government s right to regulate interstate commerce. In a brief but perceptive attack, Justice Thomas s dissent noted that the majority opinion s implication is either that paying for advertising is not speech at all, or that compelling payment for third party communication does not implicate speech. In either case, he laments, surely we have lost our way. City of Boerne v. Flores, 521 U.S. 507 (Pro- Liberty). The Court, 6-3, struck down the Religious Freedom Restoration Act (RFRA) as exceeding the Fourteenth Amendment s grant of power to Congress. Majority (Pro-Liberty): Kennedy, Rehnquist, Stevens, Thomas, Ginsburg, Scalia Dissent (Anti-Liberty): O Connor, Breyer, Souter Although RFRA pursued the admirable goal of expanding religious liberty, the Court properly rejected this attempt by Congress to increase the federal government s power in a sweeping manner. The central issue in this contentious case was whether Congress had exceeded its power under 5 of the Fourteenth Amendment. The majority correctly argued that it had, as this statute was far too broad, was not remedial in State of the Supreme Court 10

13 nature, and seemed to be an attempt to mandate the substance of First Amendment protections, which blatantly violates the separation of powers doctrine. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (Anti-Liberty). A 5-4 Court upheld the mustcarry provisions of the 1992 Cable Television Consumer Protection and Competition Act, requiring cable providers to carry local broadcast networks, as consistent with the First Amendment. Majority (Anti-Liberty): Kennedy, Rehnquist, Stevens, Souter, Breyer Dissent (Pro-Liberty): O Connor, Scalia, Thomas, Ginsburg The majority mistakenly chose to use a standard of intermediate scrutiny to evaluate this imposition on the First Amendment rights of cable companies. The dissent properly would have reviewed the must-carry law under strict scrutiny, under which the statute surely would have failed. OCTOBER 1997 TERM United States v. Bajakajian, 524 U.S. 321 (Pro- Liberty). For the first time in its history, the Court, 5-4, struck down a punitive forfeiture as an excessive fine, forbidden by the Eighth Amendment. Majority (Pro-Liberty): Thomas, Stevens, Souter, Ginsburg, Breyer Dissent (Anti-Liberty): Kennedy, Rehnquist, O Connor, Scalia The Court held that a man boarding an international flight with $347,000 in unreported cash could not be made to forfeit the entirety of the money for having violated Customs regulations and lying to Customs officials about how much he was carrying. The Court struck a blow for property rights, holding that some proportionality was required between the punishment and the crime. The dissenters, disregarding the importance of maintaining control over personal property, bewilderingly argued that such proportionality existed, and that the statutory forfeiture system was necessary to stop drug kingpins and money launderers. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. Justice Sandra Day O Connor Troxel v. Granville Eastern Enterprises v. Apfel, 524 U.S. 498 (Pro- Liberty). The Court, 5-4, found that the Coal Industry Retiree Benefit Act s requirement that coal companies pay lifetime pensions to employees, when applied to a company that had left the coal industry in the meantime, was an unconstitutional taking. Majority (Pro-Liberty): O Connor, Rehnquist, Scalia, Thomas, Kennedy Dissent (Anti-Liberty): Stevens, Souter, Ginsburg, Breyer This decision represents a notable and heartening expansion of the Takings Clause s breadth. While some economic regulations previously had been considered takings, never before had the sole obligation to pay money as the result of a regulatory decree been acknowledged as a taking of property. Phillips v. Washington Legal Found., 524 U.S. 156 (Pro-Liberty). The Court held, 5-4, that interest State of the Supreme Court 11

14 earned on accounts held by lawyers for their clients was the property of the clients for purposes of Fifth Amendment takings jurisprudence. Majority (Pro-Liberty): Rehnquist, O Connor, Scalia, Kennedy, Thomas Dissent (Anti-Liberty): Souter, Stevens, Ginsburg, Breyer In Texas (and 48 other states), any money held by an attorney for clients in a small enough amount to earn no net interest is pooled in a federal interest-bearing account, whose proceeds go to a state pro bono organization. The majority ruled that, for purposes of determining whether this constituted a taking under the Fifth Amendment, the interest on these accounts belonged to the clients just as the principal did. OCTOBER 1998 TERM Alden v. Maine, 527 U.S. 706 (Pro-Liberty). A sharply divided 5-4 Court limited the power of Congress to subject States to suit under the Fair Labor Standards Act in state court. Majority (Pro-Liberty): Kennedy, Rehnquist, O Connor, Scalia, Thomas Dissent (Anti-Liberty): Souter, Stevens, Ginsburg, Breyer In an important decision limiting the power of the federal government, the majority held that Congress lacked the power to abrogate a State s sovereign immunity in state court under Article I of the Constitution. NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (Pro- Liberty). The Court unanimously rejected the contention that the Sherman Act requires a single buyer to provide a legitimate business reason for its decision to purchase goods or services from one supplier rather than another. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. Justice Anthony M. Kennedy Rice v. Cayetano Majority (Pro-Liberty): Unanimous (by Breyer). The Court wisely declined to extend its per se rule, which applies to group boycotts in the form of horizontal agreements among direct competitors, to a single firm s purchasing decisions. In this victory for economic liberty, the Court recognized that [t]he freedom to switch suppliers lies close to the heart of the competitive process. Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (Pro-Liberty). The Court held, 5-4, that the federal government lacked the power to subject States to suit under the Patent and Plant Variety Protection Remedy Clarification Act. Majority (Pro-Liberty): Rehnquist, O Connor, Scalia, Kennedy, Thomas Dissent (Anti-Liberty): Stevens, Souter, Ginsburg, Breyer The Court limited the power of Congress to use its power under 5 of the Fourteenth Amendment to abrogate state sovereign immunity. In this case, it held that Congress could not subject States to patent infringement suits. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (Pro-Liberty). State of the Supreme Court 12

15 The Court, 5-4, limited the power of the federal government to subject states to suit under the Lanham Act, which prohibits false representations in commerce. Majority (Pro-Liberty): Scalia, Rehnquist, O Connor, Kennedy, Thomas Dissent (Anti-Liberty): Stevens, Breyer, Souter, Ginsburg Once again, the Court reaffirmed that there are constitutional limits to the federal government s power. Here, the majority rejected the argument that, under 5 of the Fourteenth Amendment, Congress could subject the States to Lanham Act suits. Los Angeles Police Dep t v. United Reporting Publ g Corp., 120 S. Ct. 483 (Anti-Liberty). The Court upheld, 7-2, a law placing restrictions on access to arrestees information, which discriminated against those using the data for commercial purposes. Majority (Anti-Liberty): Rehnquist, Scalia, Ginsburg, O Connor, Souter, Thomas, Breyer Dissent (Pro-Liberty): Stevens and Kennedy In a loss for free speech in the commercial sphere, the Court allowed a government agency to deny access to information to anyone who might sell it, while simultaneously allowing other individuals, such as journalists, to transmit the data for noncommercial purposes. Buckley v. American Constitutional Legal Found., Inc., 525 U.S. 182 (Pro-Liberty). The Court, 6-3, overturned restrictions on individuals disseminating information about ballot initiatives as violating the First Amendment. Majority (Pro-Liberty): Ginsburg, Stevens, Scalia, Kennedy, Souter, Thomas Dissent (Anti-Liberty): O Connor, Breyer, Rehnquist In an important victory for First Amendment freedom in the political sphere, the Court struck down three requirements placed by the State of Colorado on individuals distributing petitions for statewide ballot initiatives: that petition circulators be registered to vote in Colorado, wear name tags, and disclose to the states their name, address, and the amounts of any payments they received for circulating petitions. The Court properly found that these requirements stifled political speech and made it difficult to circulate petitions while serving no state interest that could not be achieved through alternative means. Wilson v. Layne, 526 U.S. 603 (Pro-Liberty). The Court unanimously held that it is a Fourth Amendment violation when police officers who are executing a warrant to search private property allow reporters to accompany them without the consent of the property s owner. Majority (Pro-Liberty): Unanimous (principal opinion authored by Rehnquist). The Court properly decided that the police, in executing a search warrant, may not bring reporters onto private property without the permission of the property s owner. Such an invasion of the owner s right to exclude unwanted visitors from his or her property is a violation of the Fourth Amendment. OCTOBER 1999 TERM Board of Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct (Anti-Liberty). The Court unanimously upheld against a First Amendment challenge a state university s mandatory student fee requirement when fees funded, among other things, student political groups. State of the Supreme Court 13

16 Majority (Anti-Liberty): Unanimous (principal opinion authored by Kennedy). Although the Court s opinion sustaining the constitutionality of the mandatory fees concentrated on the fact that the funding program was viewpoint neutral, it failed to recognize that requiring students to fund political speech with which they may not agree tramples on First Amendment rights. There comes a point... at which the regulation of action intimately and unavoidably connected with traditional speech is a regulation of speech itself. Justice Antonin Scalia Hill v. Colorado (dissent) California Democratic Party v. Jones, U.S. LEXIS 4303 (Pro-Liberty). The Court held, 7-2, that California s blanket primary system, where any voter could cast a ballot for any parties candidates in a unified primary violated the First Amendment s freedom of association. Majority (Pro-Liberty): Scalia, Kennedy, Rehnquist, O Connor, Souter, Thomas, Breyer Dissent (Anti-Liberty): Stevens, Ginsburg The Court threw out an effort by the State of California to promote the nomination of centrist candidates by political parties. The majority pointed out that the freedom of association necessarily entails an organization s freedom to limit its membership. Here, California was impermissibly infringing on freedom by mandating that Republicans could have a say in choosing the Democratic party s nominee and vice versa. FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct (Pro-Liberty). The Court held, 5-4, that the FDA does not have jurisdiction to regulate tobacco products. Majority (Pro-Liberty): O Connor, Rehnquist, Scalia, Kennedy, Thomas Dissent (Anti-Liberty): Breyer, Stevens, Souter, Ginsburg The Court slapped the FDA s hand as the agency reached out to make an illegal power grab. The majority opinion refers to voluminous evidence indicating that Congress did not intend to give the FDA jurisdiction over tobacco. This case serves as an important reminder that it is the job of the judicial branch to ensure that federal agencies do not overstep the authority granted to them by Congress. Hill v. Colorado, U.S. LEXIS 4486 (Anti- Liberty). A 6-3 Court upheld the constitutionality of a Colorado law requiring protesters to remain more than eight feet away from anyone entering an abortion clinic against a First Amendment challenge. Majority (Anti-Liberty): Stevens, Rehnquist, O Connor, Souter, Ginsburg, Breyer Dissent (Pro-Liberty): Scalia, Thomas, Kennedy Despite the obvious infringement of free speech caused by this statute, the Court held that it was sufficiently tailored to serve the State s interests in preserving the health and safety of its citizens. Justice Scalia accurately recognized, in dissent, that this restriction was not content-neutral and therefore should have been subject to strict scrutiny, which it would have failed. Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (Pro-Liberty). The Court held, 5-4, that Congress lacked the power to subject States to suit under the Age Discrimination in Employment Act. State of the Supreme Court 14

17 Majority (Pro-Liberty): O Connor, Thomas, Kennedy, Rehnquist, Scalia Dissent (Anti-Liberty): Stevens, Souter, Ginsburg, Breyer The Court again limited federal power by holding that 5 of the Fourteenth Amendment does not give Congress carte blanche to abrogate state sovereign immunity. Nixon v. Shrink Missouri Gov t PAC, 120 S. Ct. 897 (Anti-Liberty). The Court upheld, 6-3, a Missouri law that limited a citizen s campaign contribution to a candidate for statewide office to $1,075 per election. Majority (Anti-Liberty): Souter, Stevens, Breyer, Rehnquist, O Connor, Ginsburg Dissent (Pro-Liberty): Kennedy, Thomas, Scalia Failing to correct the mistake made in Buckley v. Valeo, 424 U.S. 1 (1976), this decision continues to place the government in the untenable position of rationing political speech, a position at odds with our First Amendment tradition. The Court once again upheld limits on campaign contributions because large contributions raise suspicions of corruption and thus supposedly undermine democracy. Recent campaign finance scandals, however, illustrate the misguided nature of such efforts to restrict participation in the political process. Reno v. Bossier Parish Sch. Bd., 120 S. Ct. 866 (Pro-Liberty). The Court upheld, 5-4, the preclearance of a local redistricting plan, and in the process limited the federal government s ability to use the Voting Rights Act to pressure states and localities to engage in racial gerrymandering. Majority (Pro-Liberty): Scalia, Thomas, Rehnquist, O Connor, Kennedy Dissent (Anti-Liberty): Souter, Stevens, Breyer, Ginsburg The Court again struck a blow against the racial gerrymandering of voting districts. It is interesting to note that while the precleared plan for the Bossier Parish School Board contained no majority minority districts, African-Americans had won election to the Board while the case was being litigated, thus showing that drawing districts on the basis of race is not only discriminatory but also unnecessary for minorities to win political office. Rice v. Cayetano, 120 S. Ct (Pro-Liberty). The Court held, 7-2, that an ancestry requirement to vote for a Hawaiian state government office violated the Fifteenth Amendment. Majority (Pro-Liberty): Kennedy, Breyer, Rehnquist, O Connor, Scalia, Thomas, Souter Dissent (Anti-Liberty): Stevens, Ginsburg In another blow to the power of government to classify citizens by race, the Court struck down a Hawaiian law that required a citizen to have a certain amount of native Hawaiian ancestry in order to vote in elections for the nine trustees of the Office of Hawaiian Affairs. The Court pointed out that unlike some of the schemes formerly used to prevent blacks from voting, this requirement was neither subtle nor indirect. United States v. Playboy Entertainment Group, Inc., 120 S. Ct (Pro-Liberty). The Court held, 5-4, that Section 505 of the Telecommunications Act of 1996, which required cable operators to scramble or block adult television channels in such a manner that no audio or video signal bleed would reach viewers or, in the alternative, only offer such channels from 10 p.m. to 6 a.m., was an impermissible content-based restriction on speech. Majority (Pro-Liberty): Kennedy, Stevens, Thomas, Souter, Ginsburg State of the Supreme Court 15

18 Dissent (Anti-Liberty): Scalia, Breyer, Rehnquist, O Connor The Court upheld the basic underpinnings of the First Amendment by holding that this restriction on free speech did not withstand strict scrutiny because it was not the least restrictive method of restricting children s access to indecent broadcasts. It pointed out that Section 504 of the Act provided for targeted blocking of channels upon the requests of individual customers. Analysis The Court s Record on Liberty Examining those cases where the Institute for Justice filed amicus briefs as well as other significant cases of the past four Terms, we find that the Court issued pro-liberty decisions almost 80 percent of the time (35 of 45 cases). Looking at only those cases where the Institute filed amicus briefs, the Court similarly sided with the cause of individual liberty and the Institute 78 percent of the time (14 of 18 cases). The Court was remarkably strong in cases limiting the power of the federal government (eight of eight) and restricting the ability of government to classify Americans on the basis of race (four of four). But these victories could easily be short-lived all but two of those 12 cases were decided by a 5-4 vote, with Justices Breyer, Ginsburg, Souter, and Stevens forming the dissent in all 10 of the 5-4 decisions. Overall, a 5-4 split occurred in 19 of the Court s 35 pro-liberty decisions, and this particular 5-4 split occurred in almost half of the proliberty decisions (14 times), showing how the next appointment to the Court could significantly curb or strengthen our individual liberties. The Justices Records on Liberty Overall When looking at the justices scores, what is perhaps most striking is the large gap between the five justices with the best records of defending individual liberty (Thomas, Kennedy, Scalia, O Connor and Rehnquist) and the other four justices (Ginsburg, Souter, Stevens, and Breyer). Leading the way in protecting individual freedom is Justice Thomas, who cast pro-liberty votes in 87 percent of the decisions studied. Narrowly trailing Justice Thomas is Justice Kennedy with an 82 percent record of defending liberty, closely followed by Justice Scalia at 80 percent. Justices Thomas, Kennedy, and Scalia have excellent pro-liberty records and are to be commended for consistently upholding limits on government power in all areas of the law. Rehnquist WHERE THE JUSTICES STAND ON INDIVIDUAL LIBERTIES Thomas Kennedy Scalia O'Connor Souter Ginsburg Breyer Stevens Individual Liberties Pro-Liberty 40% 38% 35% 33% 69% 64% 87% 82% 80% Anti-Liberty FIGURE 2 Justices Rehnquist and O Connor have also compiled a good track record of protecting liberty. While each is inclined to side with government in one or more of the important areas State of the Supreme Court 16