26 June 2007

scotus hackery

as is often the case, antonin scalia said it best: "This faux judicial restraint is judicial obfuscation."

such has often been true for conservative ("restrained") justices, including scalia himself, but the string of 5-4 overrules and political pandering that has characterized the roberts court so far is more dispiriting than usual. the partial birth abortion act; "bong hits 4 jesus"; now an absurdist rendering of our already rather toothless campaign finance law.

a meaningless message duct-taped to a sheet is not, according to the new majority, protected speech because it references drugs. (also jesus, but something tells me they'da been ok with that.) on the other hand, when it comes to huge corporations, unions and wealthy lobbies, roberts wrote: "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

now, i understand, to a point, the history of first amendment law in schools. fine. carol nackenoff dragged us through several weeks of this jurisprudence five years ago, just so that i could understand how "the tie goes to the speaker" is not necessarily applicable in a school setting. but this is really not about the differential standards for protected speech in school and non-school settings. this is about "bong hits" versus the big money campaigning. about how having lots and lots of money makes one's speech a little bit more, um, speechy. (thanks, stephen colbert.)

hacks! they are hacks. we have long suspected that they are hacks. and now they are hacks who have a bare majority, hacks whose hackery is exposed precisely by the bareness of that majority. i don't see any striving for consensus. i don't see anything but the ratification of unprincipled, narrowly political decision-making as the court's new modus operandi.

i guess this is a data point in favor of terry moe's argument about the expansion of executive power: there's no stable equilibrium; having exercised that constitutionally mandated apopintment power and gotten more staff and administrative resources for the appointment process and thereby more appointment power and thereby more resources for the appointment process...well, you get the picture. jeffrey toobin has it right in the current new yorker: "The days when justices surprised the Presidents who appointed them are over[.]" meaning: that "removed from the political process" rhetoric that has always been a key talking point for the least dangerous branch? done for.