Category Archives: Supreme Court

Pro-con: Did high court get it right on Phelps protests?

The U.S. Supreme Court ruled 8-1 (Alito dissenting) in favor of free speech at the expense of giving a legal victory to a repugnant group. While the Westboro Baptist Church hates what they view as both the sinner and the sin, the court properly rebuked the Phelpses while correctly expressing utmost devotion to their right to propagate their wayward message. As the brevity of Chief Justice John Roberts’ opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade. If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended. — Ilya Shapiro, Cato@Liberty blog

Wednesday’s 8-1 decision by the U.S. Supreme Court to uphold the free speech rights of the Westboro Baptist Church should send a chilling message across America, because it will only embolden Fred Phelps and his followers to protest any funeral for whatever reason — and without legal recourse for the bereaved. This case should not be regarded as a victory of any sort by First Amendment advocates; it is just another extreme test of the high court’s tolerance and its interpretation of the U.S. Constitution. What everyone should worry about is, what challenge comes next? The Veterans of Foreign Wars of the United States now urges all state legislatures to further strengthen their laws to help protect military families from future protests and great emotional pain that can be just as debilitating as any physical injury. Funerals are about remembrance and respect for the fallen and their families. Westboro is not invited. — Richard L. Eubank, national commander, Veterans of Foreign Wars of the United States, in USA Today

Free speech for jerks

“Even jerks are protected by the First Amendment.” — From a Wall Street Journal editorial about the U.S. Supreme Court’s 8-1 decision supporting the Phelps family’s right to protest at military funerals

Court made correct decision on offensive Phelpses

As offensive as the Phelps protesters are, they have a right to express their views. So the U.S. Supreme Court was correct in ruling 8-1 today against a Maryland father who sued members of Topeka’s Westboro Baptist Church after they picketed his son’s funeral. States can place time and place restrictions on such protests, as Maryland and Kansas have done. But Chief Justice John Roberts wrote that our nation protects “even hurtful speech on public issues to ensure that we do not stifle public debate.”

Thomas’ remarkable silence

U.S. Supreme Court Justice Clarence Thomas is approaching five years without having spoken during a court argument. In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, the New York Times reported. What is odd about Thomas’ silence is that he has an outgoing personality in private.

Health care law may come down to Kennedy

Monday’s ruling on the health care reform law now evens the score — with two federal judges saying the law’s individual mandate is unconstitutional and two saying it is OK. The inevitable outcome of this debate is a U.S. Supreme Court ruling. And that is already putting the spotlight on Justice Anthony Kennedy, who could be the deciding swing vote. Noting how President Obama needed the help of the late Sen. Ted Kennedy, D-Mass., to get the bill passed, Wall Street Journal columnist William McGurn wrote that if Obama is “to see his signature issue survive, once again he needs a Kennedy.”

Justices’ proper place wasn’t at Koch gatherings

It’s not surprising that Charles and David Koch, the executives of Wichita-based Koch Industries, might have wanted conservative U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas to speak at Federalist Society dinners scheduled around the Kochs’ private meetings of elite conservative leaders in California. But it’s disconcerting that Scalia and Thomas would have seen no problem in being associated with the annual meetings, which are intended, according to this year’s invitation, “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” Those honored with the responsibility to sit on the Supreme Court should be more careful about the company they keep, especially when invitations come in from people, businesses and groups keenly interested in swaying the court to their way of thinking.

Stop playing politics with judicial nominations

Chief Justice John Roberts urged lawmakers from both parties to end their hypocritical bickering and approve the nomination of more federal judges. “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Roberts wrote in his annual State of the Judiciary report. “This has created acute difficulties for some judicial districts.” There are 94 vacancies in the federal judiciary, 44 of which have been designated “emergencies” by the Judicial Conference of the United States.

Strange time for Thomas’ wife to want apology

thomas,clarence“Hell hath no fury like a wife whose husband has been publicly scorned,” noted Washington Post columnist Ruth Marcus. But what motivated U.S. Supreme Court Justice Clarence Thomas’ wife, Virginia Thomas, to leave a phone message last week for Anita Hill, calling on Hill to apologize all these years later for her testimony in those confirmation hearings? Others have backed up Hill’s allegations that Clarence Thomas (in photo) sexually harassed her, Marcus noted. “Clarence Thomas has taken the road of angry denial and, unless she’s about to let her marriage unravel over it, the path of least resistance may be for Ginni to join him there.”
Then again, why did Hill hear in the message a threat worthy of a call to law enforcement? Marcus wrote: “A voice mail on an office phone isn’t exactly intrusive, and there was no harassing follow-up. Ginni Thomas might have been out of line, but she wasn’t threatening in any way.”

Sympathy for Topeka about Phelpses

phelpssignA weekend New York Times article expressed sympathy for Topeka for being the home of Westboro Baptist Church and the anti-gay Phelps family and its protests. The story likened Topeka to neighborhoods in other cities that have been forced to allow marches by neo-Nazi groups — only that rather than just pass through town, the Phelpses “moved in, signs, speech and all.” The article noted how Phelps protesters “remain a fixture at public parks, government buildings, other churches and graveyards” in Topeka. “So goes the fate of Topeka, a city where free speech is less an idea than a lived experience.”

Pro-con: Should Phelps prevail at high court?

Funeral ProtestsSupreme Court justices may be tempted to rule against the Westboro Baptist Church out of understandable sympathy for father of Lance Cpl. Matthew A. Snyder, a Marine killed in Iraq. They should resist the temptation.
Allowing even private figures to recover damages for distress caused by the political or religious speech of others would be a dramatic departure from the court’s protection of free expression no matter how offensive. And it would have reverberations in settings far removed from military funerals.
The appeals court’s most important finding was that the church, however outrageously, was addressing matters of public concern, just as Jerry Falwell and Pat Robertson were when they suggested that the 9/11 terrorist attacks were God’s punishment for toleration of abortion and homosexuality. No doubt that statement caused emotional distress for relatives of 9/11 victims, but it was constitutionally protected. The court should rule that the First Amendment also protects the ravings of the Westboro Baptist Church.
— Los Angeles Times editorial

The Phelpses did not happen to picket within sight of Matthew Snyder’s funeral. They announced their intention to hijack the event. They stood at the church entrance, forcing the procession to reroute. They published an insult-filled “Epic” about the Snyder family. Albert Snyder was not a passer-by who happened to dislike what he heard; he was the victim of harassment.
Matthew Snyder was not gay. No one in his family holds public office or is outspoken on gay rights. The Phelpses randomly picked the Snyders. Shielding their conduct from liability gives them free rein to show up at any funeral spouting anti-gay epithets and to write hate-filled tirades about any person. The First Amendment does not protect such arbitrary persecution.
Albert Snyder asks merely that he be compensated for harm. Snyder presented evidence that the Phelpses’ conduct made him vomit, interfered with his mourning process and worsened his diabetes.
The First Amendment may exist to protect unpopular speech, but private lawsuits exist so that those who cause injury will be held accountable to their victims.
— Richard L. Eubank, Veterans of Foreign Wars of the United States, in a USA Today commentary

‘Birthers’ out of luck with Supreme Court

obamabirthbillboard“Birthers” who think that conservative justices on the U.S. Supreme Court will support their claim that President Obama wasn’t born in the United States had better think again. For the second time, the high court upheld a $20,000 fine against a birther leader for filing “frivolous” litigation challenging Obama’s citizenship. Justice Samuel Alito rejected the request to block the sanction Monday, while Justice Clarence Thomas rejected an earlier request. Of course, the birthers may now claim that Alito and Thomas are part of the conspiracy.

Senators let Kagan nomination play out

Obama Kagan Supreme CourtNo one expects Kansas Sens. Pat Roberts and Sam Brownback to vote this week to confirm Elena Kagan to the U.S. Supreme Court. After all, both voted against Kagan’s nomination to become solicitor general and against the confirmation of Justice Sonia Sotomayor. At least Roberts and Brownback declined to prejudge the nominee publicly this time, after having announced their “no” votes for Sotomayor weeks ahead of her confirmation hearings last summer.

Kagan should be confirmed

Obama Kagan Supreme CourtGood for Sen. Lindsey Graham, R-S.C., for approving Elena Kagan’s nomination to the U.S. Supreme Court. Graham was the only Republican on the Senate Judiciary Committee to vote to send the nomination to the full Senate. As Graham has noted, elections matter, and presidents should have considerable prerogative in picking justices. And as long as a nominee is well-qualified and of good character, the Senate should approve the nomination. That’s why The Eagle editorial board has supported the nominees, liberal and conservative, of past Republican and Democratic presidents.

What will be impact of gun ruling?

gunpointingrightThe U.S. Supreme Court’s 5-4 ruling today that Americans have the right to own a gun for self-defense anywhere they live will lead to the overturning of laws banning handguns. But its impact might not be that great — at least initially. Only two cities — Chicago and one of its suburbs — have such bans. Also, cities and states are still able to pass some restrictions on gun ownership — though it’s not clear yet how far those restrictions can go. Still, it’s a landmark ruling clarifying that Second Amendment gun rights trump local bans.
The ruling may cause some division among conservatives concerned about activist justices overturning the will of voters and lawmakers. For example, U.S. Court of Appeals Judge J. Harvey Wilkinson III, a leading conservative jurist, criticized the court’s earlier decision overturning a Washington, D.C., handgun ban. Wilkinson wrote that the ruling “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

Pro-con: Court right in terror support case?

supremecourtbldgThe U.S. Supreme Court did the world a great big favor Monday in ruling that “no” means absolutely not in any way, shape or form when it comes to providing supposedly high-minded assistance to designated terrorist organizations. Adherents of the PKK, which has killed 22,000 in fighting for independence for Turkish Kurds, and of the LTTE, which killed 100 in a single bombing aimed at achieving Tamil independence from Sri Lanka, contended that a statute barring support for terrorist organizations violated their First Amendment rights. The difficulty is that organizations like the PKK and LTTE, not to mention Hamas and Hezbollah, conduct terror campaigns while providing social services to constituents. A six-member majority of the court correctly recognized that Congress had solid grounds for prohibiting Americans from supporting what appear to be the lawful activities of a designated terrorist group because of the very real risk of abetting the organization’s nefarious aims. — New York Daily News

The ruling is a defeat for two groups of activists that want to engage in so-called peace building. One is a collection of organizations supportive of the humanitarian and political activities of Tamil separatists in Sri Lanka. The other wants to advise the Kurdistan Workers’ Party on how to take its grievances against Turkey to the United Nations. Writing for the court, Chief Justice John Roberts concluded that such efforts violate a law making it a crime to “knowingly provide material support or resources to a foreign terrorist organization” designated by the State Department. But that is an unconvincing reading of the statute, and one that offends the Constitution. A sounder interpretation was offered by Justice Stephen G. Breyer in his dissenting opinion. He wrote that the law should be interpreted as criminalizing speech and association otherwise protected by the First Amendment “only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” Congress should make it clear that it agrees. — Los Angeles Times

President Clarence Thomas?

thomas,clarenceNoting that Justice Clarence Thomas is silent on the Supreme Court bench but “charismatic and compelling” in other public settings, writers David Lat and Kashmir Hill urged him to challenge President Obama in 2012. “Thomas could be the GOP’s new standard-bearer,” they wrote. “He has enviable name recognition, both as a long-serving justice and as the author of the best-selling 2007 autobiography ‘My Grandfather’s Son.’ And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.” His poor childhood, experience as a Missouri assistant attorney general and in the Reagan administration, and even his summer RV vacations around the country further qualify him, they added. “And, if he won in 2012, Thomas could appoint conservative justices of his choosing,” they wrote.

Keep even loathsome speech free

phelpssignWhile noting the “agonizing” facts of the case brought by the father of a fallen Marine, the Washington Post applauded Virginia Attorney General Ken Cuccinelli for refusing to join Kansas Attorney General Steve Six and 47 other states in supporting the lawsuit against the Fred Phelps clan’s protesting of military funerals, which the U.S. Supreme Court will hear next fall. The Post editorialized: “The sensible way to deal with Mr. Phelps and his followers is by using the same regulations the authorities generally use to contain other obnoxious groups of protesters — racists, neo-Nazis, skinheads. Keep them at a distance from which they cannot disrupt their targets, provide adequate police presence to deter violence, and let them spew. That approach ensures that in the free marketplace of ideas, their hate speech will fall on deaf ears.”

At odds on judicial activism

justiceladyReason magazine examined a split between conservatives and libertarians on judicial activism. The two groups share many views and have been allies in court nomination fights. But recent Supreme Court rulings have highlighted a divide on how much justices should rely on precedents and decisions made by elected officials. For example, U.S. Appeals Court Judge J. Harvey Wilkinson, a leading conservative jurist, strongly criticized the Supreme Court’s 2008 decision overturning the Washington, D.C., ban on handguns. Such judicial activism, Wilkinson wrote, “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

Could Mother Teresa get GOP votes?

Obama Kagan Supreme CourtWith confirmation hearings due to begin June 28, it’s still unclear how fierce the opposition will be to Supreme Court nominee Elena Kagan (in photo). But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., isn’t expecting much bipartisanship. If a majority of Republican senators vote against her, it won’t be surprising — or have anything to do with Kagan herself, he said. Leahy doubts that the nominations of retired Justices Sandra Day O’Connor and David Souter or sitting Justices John Paul Stevens and Anthony Kennedy would do any better today. “I have joked that if President Obama nominated Moses, the lawgiver, or Mother Teresa, Senate Republicans would vote against the nomination,” he said. “Such is the willingness of many Republican senators to heed the extreme ideological tests imposed by the far right.”

Most Americans clueless about high court

Sotomayor ConfirmationNo wonder retired Supreme Court Justice Sandra Day O’Connor has been a proponent of civics education. In a new national survey by, only 35 percent of Americans could name a member of the high court, and only 1 percent could name all nine members. The best-known is the one who says the least from the bench: Justice Clarence Thomas, named by 19 percent of those surveyed. Only 15 percent could name Justice Sonia Sotomayor (in photo), despite her polarizing confirmation hearings last summer.

Justices OK with Kagan not being a judge

scaliaRepublicans citing Elena Kagan’s lack of judicial experience should note that neither sitting Justice Antonin Scalia (in photo) nor retired Justice Sandra Day O’Connor has a problem with it. Both were nominated by President Reagan. “I think it’s fine. Just fine,” O’Connor said today on ABC’s “Good Morning America,” also saying that former Harvard Law School dean Kagan seems “very well qualified academically.” A day earlier, Scalia said in a lecture in Washington, D.C., that he was “pleased to see the most recent nominee come from outside the federal judiciary and indeed the judiciary as a whole.” He also characterized as “dangerous” the European systems in which “people go right from a clerkship to a junior judgeship” and then are promoted to higher courts, because they result in a judiciary of “the ultimate bureaucrats.”

Blame GOP for Kagan’s paper trail

Obama Kagan Supreme CourtWashington Post columnist Ruth Marcus, who considers Supreme Court nominee Elena Kagan a friend, offered a good comeback to the complaint that Kagan’s publicly recorded views are too few: “Blame Republicans. If they had confirmed Kagan when she was nominated to the federal appeals court by President Clinton, they’d have a juicier paper trail to pick apart today.” Her nomination, in 1999, was never taken up by the GOP-controlled Senate.

Kagan not liberal enough for liberals

Obama Kagan Supreme CourtDespite attempts by conservatives to paint U.S. Supreme Court nominee Elena Kagan as a liberal radical, actual liberals are upset that Kagan is too middle of the road and won’t be a counterweight to conservative Justice Antonin Scalia. But that fits a pattern of recent nominations. “No Democratic nominee since Thurgood Marshall in 1967 has been the sort of outspoken liberal champion that the left craves, while Justice Scalia has been joined by three other solid conservatives in Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.,” the New York Times reported. Sen. Tom Harkin, D-Iowa, complained: “Why do the conservatives always get the conservatives, but we don’t get to get the liberals?”

Reserve judgment on Kagan

Obama Kagan Supreme CourtSolicitor General Elena Kagan, named today as President Obama’s second pick for the U.S. Supreme Court, would bring an impressive resume in public service and academia to the job, including as former dean of the Harvard Law School. Her consensus-building skills reportedly are considerable, putting her in prime position to influence the court’s current swing vote, Justice Anthony Kennedy. Her confirmation also would be historic, giving the court a third female justice just a year after it had only one.
Some critics already see her lack of judicial experience as potentially insurmountable, while others view it as just the kind of fresh perspective the court needs. Because of her current post, she would have to recuse herself from perhaps a dozen or more matters. She also would leave the court with no Protestants (she is Jewish, as are two current justices; six are Catholic), and continue the predominance of the Harvard and Yale law schools.
Sen. Orrin Hatch, R-Utah, one of the seven Republican senators who voted for Kagan’s confirmation last March as solicitor general, already has signaled that doesn’t guarantee he’ll view her as suitable for the Supreme Court. In any case, he and other senators — including Kansas Sens. Sam Brownback and Pat Roberts, who voted against her last year — should reserve judgment at least until her Senate Judiciary Committee hearing. Hear her out, then decide.

Pro-con: Are violent video games free speech?

videogameThe U.S. Supreme Court waded into murky and, perhaps, treacherous waters Monday when it agreed to decide whether the Constitution permits California to prohibit the sale of violent video games to people younger than 18. The law regulates the sales of games that portray “killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive” manner. (Is there a polite way to do one of those things?) It also prevents children from buying games with violence that appeals to children’s “deviant or morbid interests” (whatever those might be) or that lack “serious literary, artistic, political or scientific value.” (Now there’s a logical and aesthetic minefield if ever there were one.) This is a well-intentioned but ill-conceived law that not only undermines several generations of legal progress toward making free speech a day-to-day reality in this country, but also threatens an emerging expressive industry in which California and the United States currently play a leading role. More important, it’s an unnecessary gesture toward child protection in an area millions of parents already are handling competently on their own. The Supreme Court should regard the California statute as an infringement on free speech rather than as a child protection measure — and affirm the 9th U.S. Circuit Court of Appeals’ decision to strike it down. — Timothy Rutten, Los Angeles Times

We think there is a strong argument to be made as to how the First Amendment applies differently to children and violence than it does to adults. California argues — and we agree with this position — that very violent video game sales to minors ought to be treated in the same way as selling sexual materials to minors. The state contends that excessively violent material sold to children deserves no protection under the First Amendment. Such a holding by the Supreme Court would add to the power of parents in determining whether their children should have such material, since presumably minors could get it only through their parents. We hope when Supreme Court justices contemplate the issues, they find that when it comes to minors, seriously sick and violent games deserve the same treatment as sexually explicit materials. — Long Beach Press-Telegram