Supreme Court Baffles

Our Baffling Supreme Court

Jules Witcover

If Ronald Reagan were alive today, he might well say about the Supreme Court decision allowing the picketing of a military funeral what he famously said of Jimmy Carter's criticisms in their 1980 presidential debate: "There you go again."

The court's decision, by an 8-1 vote no less, and with conservative Justice Samuel Alito the lone dissenter, is another declaration both frustrating and baffling to many court-watchers. They have come to see the court as a collective loose cannon. While the Supremes are regarded generally as swinging from the right in most 5-4 decisions, they are also unpredictable enough to cause head scratching over some of their rulings.

This one was disturbing to many Americans appalled at the court's sanctioning of Baptist church members' controlled demonstration at the burial of a U.S. Marine killed in Iraq in 2006. Chief Justice John Roberts, writing the majority opinion, said that no matter how vile was the substance of the picketing -- the church's belief that "God hates and punishes the United States for its tolerance of homosexuality, particularly in America's military" -- the recourse could not be "punishing the speaker."

The young Marine in question was not gay, but Roberts wrote that even though the picketing added to the family's "already incalculable grief," it conformed with local restrictions on proximity to the funeral. "As a nation, we have chosen a different course," he said, "to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Alito, in his dissent, said the nation's "commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." Nor, he wrote, does the First Amendment give the picketers "the right to brutalize" the father of the Marine, the plaintiff in the case, and deny him compensatory and punitive damages, as the decision did.

Justice Stephen Breyer, in his concurring opinion, noted that the majority opinion "does not hold or imply that the State is always powerless to provide private individuals with necessary protection." But he noted that "the picketing could not be seen or heard from the funeral ceremony itself" and that the father testified "that he saw no more than the tops of the picketers' signs (bearing the offensive slogans) as he drove to the funeral."

The near-unanimous decision was the most conspicuous evidence yet of this court's commitment to the First Amendment's guarantee of free speech. Barely a year ago, with a somewhat different membership, the court struck another blow in the name of the First Amendment with a 5-4 decision of far greater political consequence.

That was the ruling by the conservative bloc, written by Justice Anthony Kennedy and concurred with by Alito, declaring that corporations as well as individuals have free- speech rights and can make contributions previously barred by law to specific candidates for public office. The case, Citizens United v. Federal Election Commission, was castigated by Democrats as a death knell to campaign finance reform.

The concern they expressed was emphatically validated in the midterm congressional elections, as corporate money poured into Republican coffers and helped power the GOP takeover of the House and gains in the Senate in the new Congress.

In the majority opinion, Kennedy wrote that "by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate." But Justice John Paul Stevens, who subsequently retired, argued in dissent "that selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one's behalf."

In his two Supreme Court appointments, President Obama has brought a pair of outspoken liberals to the bench, Elena Kagan and Sonia Sotomayor, who have added considerable vigor to the minority bloc. But on the vote on free speech at military funerals they found themselves in agreement with the court's staunchest conservatives, Antonin Scalia and Clarence Thomas.

For all the conventional wisdom that the Supreme Court is locked into a rigid ideological split, this latest decision, which has all the emotional heat as the old flag-burning controversy, emphasizes the unpredictability of the nine robed adjudicators of the Constitution.

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