As the Supreme Court’s current term reaches the homestretch, justices still have more than two dozen cases to resolve — including some of the most important of the session.
Many of these remaining issues are likely to highlight the split between the conservative and liberal members of the court — and showcase the power of Justice Anthony Kennedy, who relishes his role as the swing vote.
“There probably are more 5-4 rulings and sharply worded dissents to come as the justices hand down rulings in the 26 remaining cases by the end of June and then leave for the summer,” wrote David Savage of the Los Angeles Times.
But while focusing attention on the court’s internal and political dynamics may be wonderful sport for observers and analysts, the more pressing matter is how the justices come down on matters of individual rights and government power. Make no mistake: Decisions in the cases still pending will have long-term ramifications for the Bill of Rights, race-based policies and economic liberty.
Two cases — one out of Louisville, Ky., and one out of Seattle — will determine how far officials may go in using race to assign students to public schools. Those who truly oppose discrimination should hope the justices limit the role skin color may play in denying children enrollment. When the court heard arguments in these cases, several justices appeared skeptical of claims that the need to maintain “diversity” trumped the importance of non-discriminatory policies.
Three other cases pending have major First Amendment implications.
The first involves whether unions must receive consent from nonmembers before using their mandated dues for political purposes. Another revolves around restrictions on political ads under the McCain-Feingold campaign finance law. The third deals with an Alaska high school student who wore a shirt that said “Bong Hits 4 Jesus,” angering administrators who emphasized anti-drug policies.
Let’s hope the justices strike a blow for free speech by tossing out the constitutionally dubious advertising regulations and upholding the concept that individuals have a right to determine which political causes they will support with their own money. And while school officials should have the ability to maintain decorum and order on campus, that doesn’t mean they have free reign to suppress speech simply because they disagree with the message.
The Fourth Amendment’s protection against unreasonable searches and seizures is at issue in a case out of California involving the rights of passengers during traffic stops. When police pull over a vehicle, are those in the car — except for the driver — free to leave? Golden State officials said yes, but how would the police react if someone in the backseat jumped from the vehicle and fled after a traffic stop?
In fact, law enforcement officials do not have carte blanche under the Fourth Amendment, and the court should reiterate those limits.
Finally, the high court will decide whether manufacturers and stores can set minimum retail prices for products. A California handbag maker contests that it should be unconstitutional for the government to meddle in deals he reaches with retailers involving the prices of his products. He’s correct.
This case gives the Supreme Court a golden opportunity to reinvigorate the right to private contract, which for too long has fallen victim to our burgeoning federal regulatory bureaucracy.
This is the first session under Chief Justice John Roberts and the first term for Justice Samuel Alito. Pundits will speculate how the two Bush appointees tipped the balance of the court — if at all. But of greater concern should be whether the justices — whether labeled liberal or conservative — protect and respect the boundaries spelled out in this nation’s founding document.