Here’s my uninformed (i.e., I haven’t read much more beyond just the news stories) opinions on some of the recent end-of-session flurry of Supreme Court cases:
- Ten Commandments: Two split (and split) decisions on public display of the Ten Commandments. In decisions sure to displease both absolutist sides (and close enough at 5-4 each to make both sides of any upcoming Justice confirmation froth at the mouth even further), the Court neither outright banned nor outright allowed 10C displays in public buildings. Instead, it provided various factors to consider.In the case of a Texas granite monument at the state capitol, the historical nature of the monument (as well as its presence on the grounds of the capitol as opposed to inside of a courtroom) argued for its retention. It had been in place since 1961, and that seems to have been the deciding factor. While some might argue that the length of time an evil has persisted is no argument to allow it to continue to persist, the passage of time also alters the nature of the offense; clearly, what was seen as a permissible display of state/religious entanglement in 1961 (and over decades afterward) is not necessarily the same as what’s acceptable to do today.
Which was what the Kentucky case seemed to revolve around. They were an attempt to put the 10C into courtrooms today, both the location and timing of which was seen as sending an unacceptable message of religious preference.
Overall, the Court refused to offer an overall rule, but indicated that these things will need to be examined on a case-by-case basis, factoring in history, setting, and intent as to what message such an inscription sends. I’ll need to read more to get a better feel for it, but overall I’m at least not aghast.
- Software and Piracy: The court agreed that software companies that produce technology which can be used for piracy and encourage (or do not somehow discourage) such use, can be sued for such piracy. Yeargh. On the one hand, yeah, despite all the legit uses of peer-to-peer, it’s clear that most folks see it as a way to (illegally) swap files, and “hear no evil, see no evil” is a dubious ethical code. On the other hand, not only do I have a visceral dislike for Big Media (even as I shovel dollars in their mouths), but find the idea that one is guilty for what someone else can do with your creation to be … worrisome.
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I need to review this one more carefully. I fear, though, that most of the write-ups I read about it will consist of either Jack Valenti crowing or warnings of DOOOOM, and I suspect the reality will be somewhere in-between. On the bright side, the Court didn’t actually rule on the case at hand, only that the defense that “We aren’t committing the crime, therefore we can’t be sued for it” doesn’t apply. It seems that the lower court to which the Grokster case goes will still need to rule on whether Grokster intended that illegal file sharing would be allowed by its software.
- Cable Internet: The Court ruled that a lower court was wrong to force the FCC to tell cable companies they must lease their lines for third party cable modem service. Legally (which, of course, is what matters) they may be on solid ground (the Court basically seems to have said that it’s an FCC decision, not a judiciary one), but it means less competition and higher prices, most likely, for cable modem service.
- Eminent Domain: The Court ruled last week that local governments can use eminent domain on behalf of private developers, not just for public development — i.e., jobs and tax revenue can represent a “public use” under the Fifth Amendment, if so desired by local communities. While on the one hand, I see eminent domain as something that should be a last resort (and hate to see neighborhoods and older buildings demolished on behalf of Big Development Companies who may or may not come through with promised tax revenues), it’s also a matter of (as Justice Stevens noted) recognizing that it is up to the local communities — the local government as elected by the voters, or even the state government — to make that decision, not the Feds. Federalism is funny in that way.
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So, another one where I can see the legal justification, even if the Real World outcome is not what I’d like to see.
- Medical Pot: Bottom line, if it’s something that can be sold, it can be sold across state lines, which means that it can be restricted by Federal law under the “interstate commerce” clause. Which means that the Feds can enforce anti-marijuana use laws, even if a state has approved pot’s use for medical purposes. I understand the rationale (which has been used and abused by the Feds almost as much as the “promote the general welfare” phrase), but I’m not thrilled (nor surprised) with the application of it.
And so it goes.
I was listening to NPR’s Talk of the Nation when discussing the Ten Commandments cases. The expert (whose name escapes me now) did a good job of giving the history and principles of such cases. They then talked to a representative for the losing Kentucky case and asked him what came next. He said he would have to talk to their lawyers. The expert commented afterwords that you shouldn’t need to talk to your lawyers to figure out what a Supreme Court decision means and that was a sign of a muddled decision.
As for the eminent domain case note that Mr. Federalism, Justice Thomas dissented on this. (When Scalia and Thomas differ — like on the Medical Marijuana case — there is a federalism principle in Thomas that trumps everything.) Federalism limits the power of government and this is government run amok. This was a Fifth Amendment case, plain and simple. The next test is to see if this will be used to condemn churches and other non-profits. Ironically, this fails the Lemon test which was affirmed in McCreary (the Kentucky 10 C case). That’s because under Lemon no law is to have either an anti-religious or religious purpose. The purpose prong was challenged in McCreary but ended up being affirmed.
They then talked to a representative for the losing Kentucky case and asked him what came next. He said he would have to talk to their lawyers. The expert commented afterwords that you shouldn’t need to talk to your lawyers to figure out what a Supreme Court decision means and that was a sign of a muddled decision.
Perhaps. The decision certainly doesn’t set up a bright line over which one may not cross, and I’m sure we will see further such cases as different courts (and appellate courts) rule differently on the weighting of the factors the split SCOTUS decision outlined.
That said, that may be as realistic as it gets. An out-and-out prohibition of anything smacking of religion anywhere anything that appears to be governmental was not a reasonable outcome, nor would carte blanche in turning courts into cathedrals be. Improper religious entanglement in government (and vice-versa), in that way, is sort of like obscenity, in that everyone knows it (for themselves) when they see it.
There are three parts to the Lemon test:
1. A secular purpose
2. Neither advances nor inhibits religion
3. Avoids unnecessary entanglement
The entanglement part is the easy one. It is the purpose part that trips people up. And unlike pornography it is not always facially obvious. Some guidance on why Texas had a secular purpose and Kentucky did not would have been helpful.
My own gleaning is that the real test is the status quo test and the centrality test. If the display has been around a long time then it will probably stay. If it’s a Roy Moore special, viz. a huge monument in the middle of the rotunda, then it will probably go.
For me, it’s really hard to get worked up either way. The tortured readings of the takings clause (eminent domain) and the interstate commerce clause (medical marijuana) are what push my buttons. Those two cases considered together shows that judicial activism spans the entire political and judicial spectrum.
In the Kentucky case, part of what was cited (in arguments, at least, but also, I think, in the decision) was that the displays had started out much more explicitly religious, and had been retried several times (being struck down each time) in increasingly secular-seeming arrangements. This belied the assertion that the final/current arrangement of several documents, including the 10C, was “meant” just to describe the roots of our legal system.
My own gleaning is that the real test is the status quo test and the centrality test. If the display has been around a long time then it will probably stay. If it’s a Roy Moore special, viz. a huge monument in the middle of the rotunda, then it will probably go.
I suspect you are correct. And while that’s fuzzier and less definitive that many would like, I actually think it’s a more realistic decision. Albeit one that only got a 5-4 vote.