Supreme Court opinions are sometimes unanimous. But in the important constitutional cases, the court is almost always divided. Contrary to popular opinion, these split decisions do not always break down according to the Justices’ “liberal” or “conservative” leanings.
Some members of the court are quite predictable, Justice Thomas foremost among them, but others much less so, meaning that liberals and conservatives will often find themselves on the same side. Such shifting alliances were a recurring phenomenon during the term that ended two weeks ago.
A striking recent example is the “Bladensburg Cross” case, American Legion v. American Humanist Association, decided June 20. As I predicted in my January column “One Nation Under God and Jefferson’s Wall,” the court decided that a war memorial cross on public land, maintained with public funds, did not run afoul of the First Amendment’s separation of church and state (the “Establishment Clause”).
The vote was 7 to 2, with liberal Justices Breyer and Kagan joining the conservatives, Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh. Justice Alito’s majority opinion says that while the cross “has long been a pre-eminent Christian symbol,” this particular cross, when viewed through the lens of history, has special significance as a “central symbol” of World War I cemeteries. It seems that age takes on constitutional importance by creating “a presumption of constitutionality for longstanding monuments, symbols, and practices.”
Justices Ginsburg and Sotomayor dissented, arguing that the cross is the “defining symbol” of Christianity and cannot, indeed should not, be secularized.
In Flowers v. Mississippi, the court ruled, also 7-2, that Mississippi prosecutors went too far to keep blacks off the jury, a practice forbidden since the 1986 case of Batson v. Kentucky. The Flowers case was the sixth time this particular defendant faced trial for murder, and it came to the court with a prior history of consistent race-based prosecutorial misconduct. Justice Kavanaugh wrote the majority opinion, stressing that the court was applying well-settled law rather than breaking new ground. Six times is too much, even for this conservative judge and fellow conservative Justice Alito.
But Justice Thomas in dissent, joined by his sidekick Justice Gorsuch, says that the seven justices in the majority have their facts wrong, don’t understand how trials work, and in any case shouldn’t allow Flowers, who is black, to object because the government’s race-based motive was directed at the excluded juror, not him.
As if that myopic view weren’t bad enough, Justice Thomas then accuses the court of using the Constitution “to remedy a general societal wrong.” He would overrule Batson and reinstate race-based jury selection. The irony is that he succeeded Thurgood Marshall on the court. One can only wonder whether, if given the chance, Thomas would overrule Brown v. Board of Education (1954), which Marshall argued and won, and reinstate the discredited notion of “separate but equal” school segregation.
As you can see, Supreme Court justices are not always predictable. Chief Justice Roberts is a case in point, joining the four liberals in the “citizenship question” census case. Given the Trump administration’s on-again, off-again efforts to find a way around that ruling, I will wait to comment on how that decision deals with executive power, separation of powers and the rule of law.
However, I can’t resist discussing the June 24 decision in Iancu v. Brunetti, a case that will likely bring smiles to the faces of Keene restaurant-goers. It deals with the arcane world of trademark registration and the federal law against “immoral or scandalous” trademarks.
The mark in question was a clothing brand named “FUCT.” Justice Kagan’s 11-page majority opinion treats the words “immoral or scandalous,” despite the word “or,” as a “unified standard” and concludes that it is “viewpoint discriminatory.” That’s a legalistic way of saying it singles out offensive ideas, which the First Amendment says government may not do. So the government may not withhold trademark registration for the colorful (or off-color) brand name in question.
The two most senior members of the court, the conservative Thomas and the liberal Ginsburg, joined Kagan, along with conservatives Alito, Gorsuch and Kavanaugh. Justice Alito went so far as to add, “Viewpoint discrimination is poison to a free society.”
This left the curious alliance of Chief Justice Roberts and Justices Sotomayor and Breyer. Yes, they say, “immoral” is constitutionally overbroad, but “scandalous” isn’t, because it can be limited to “the small group of lewd words or ‘swear’ words not commonly used around children or in polite company.” (Justice Sotomayor notes that she is sparing the reader a list of such words but that “the apparent homonym” of the particular mark at issue would “plainly qualify.”) Besides, Sotomayor points out, the company could still use the word, just without governmental help in the form of a trademark.
But when the chips are really down, as in the partisan gerrymandering case, ideological differences are plainly visible. In Rucho v. Common Cause, decided June 27, the chief justice and his four conservative colleagues decided that partisan gerrymandering, undemocratic though it may be, is “political,” not “justiciable.” Yes, Marbury v. Madison (1803) dictates that the court’s duty is “to say what the law is,” but “we have no commission to allocate political power,” says Roberts, and the question of partisan gerrymandering “is not law.”
During his confirmation hearings in 2005, Roberts compared a judge’s job to calling balls and strikes. In this case, it looks more like calling the batter out before he gets to the plate.
As Justice Kagan’s dissent says, this is not just any constitutional question. It goes to the very heart of democracy, allowing politicians, in her words, “to entrench themselves in office as against voters’ preferences.”
A sad way to end the 2018-19 Supreme Court term, if you ask me.