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The Supremes tackled a hodge-podge of issues in yesterday’s five decisions

supreme1.jpgYesterday was supposed to be the last day of the term for the Supremes, but they have so many decisions left that they decided to make Thursday the last day. So yesterday saw only some of the last decisions come down, and the rest will be out later this week. SCOTUSblog has a great entry loaded up with links to various discussions and articles about the two cases. But here’s my link-summary on the decisions for the QuizLaw faithful.

As we mentioned yesterday, the Court ruled that “Bong Hit 4 Jesus” is not protected speech when it’s on a banner being held high by a student (see what I did there with the “held high?” Don’t nobody ever accuse me of not being clever!). David Lat thinks that the Supremes ruled against “noble, crusading students” in favor of “the mean old school officials” because they prefer crack to weed. The AP’s Mark Sherman, taking a more serious look at the decision, notes that conservative groups are actually on Frederick’s side, as opposed to their usual position on the administration’s side, “out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.” Meanwhile, the WSJ Law Blog notes that Thomas, in a concurrence, said he’d like to rule “that public school students don’t have First Amendment rights at school.”

Meanwhile, in National Association of Home Builders v. Defenders of Wildlife, Alito penned the majority decision (in a 5-4 decision), ruling that when a federal agency is required (by law) to take some action, it doesn’t have to follow a conflicting mandate within the Endangered Species Act. In this case, the other law was the Clean Water Act, and so it would appear that while rock beats scissors, water beats the American burying beetle. …Work with me here, people.

Then there’s Hein v. Freedom from Religion Foundation, which was another 5-4 split with the majority decision penned by Alito. Here, the Supremes said “that ordinary taxpayers cannot stop conferences that help religious charities apply for federal grants.” Or as Jason Harrow puts it, this decision means that a person cannot “sue the federal government, alleging an executive branch violation of the Establishment Clause, solely because that person is a taxpayer.” So President Bush is quite pleased, because this means that his faith-based initiatives can continue full-steam. Alito said the taxpayers didn’t have standing because Congress wasn’t providing the financial appropriation; rather the White House was simply pulling the money out of general appropriations. In his dissent, Justice Souter calls shenanigans, and says the case should’ve been allowed to move on to its merits. And Thomas and the Scalia, of course, said the majority didn’t go far enough, and should’ve banned all taxpayer lawsuits, which they see as a “blot on our jurisprudence.”

Number four for the day was Wilke v. Robbins, which contains a ruling that you can’t hold a government official personally liable under RICO if they were acting in their official capacity in trying to get your land for the government. The Jurist quickly sums up the situation behind this case, which makes this ruling more clear: “Robbins filed a lawsuit against several employees of the Bureau of Land Management … seeking to hold them liable under RICO … for alleged extortion in trying to gain a reciprocal right-of-way through Robbins’ private property.” Since the Bureau folks were acting in their governmental capacity, Robbins just can’t go after them personally under RICO.

And the biggest case of the day was probably FEC v. Wisconsin Right to Life. Over at SCOTUSblog, Gretchen Sund calls the 5-4 decision a “blockbuster” which “[e]ffectively, though silently … overrules a central element in the Court’s most recent prior confrontation with the campaign-finance problem at issue.” As reported by the AP, the 5-4 majority “loosened restrictions … on corporate- and union-funded television ads that air close to elections” by upholding a lower court decision “that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.” The basis of this decision was free speech (so for those paying attention, there were two free speech cases today), and the majority said the campaign finance law was unreasonably limiting speech and violating this group’s First Amendment rights. As Sund sees it, “[t]he holding today is that the First Amendment precludes Congress from regulating any ad unless the government can prove that ‘the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,’” and Sund thinks this “takes the permissible regulation of campaign financing very close to back to what it was before the McCain-Feingold law.”

In another post, Sund says that this decisions is, as you may have already figured out from the above quick-discussion, “a major victory for those who oppose campaign finance regulation, and will likely lead to a new proliferation of corporate and union funded campaign ads in the 2008 election season.” Well that’s just bloody fantastic - I love me some corporate campaign ads! Meanwhile, also at SCOTUSblog, Marty Lederman sees the decision’s big impact as being the start of “a major sea-change with respect to corporate speech rights [rather] than a case upending the First Amendment’s general treatment of campaign finance regulation.”

And finally, Professor Bainbridge takes a Washington Post reporter to task for claiming that yesterday was a major win for Conservatives all around, saying that the “attempt to fit these cases into a pre-conceived left-right model is a few french fries short of a happy meal.”