Three Supreme Court rulings this week show the difference President Bush's two pivotal court appointments have made. It is easy to lose sight of the difference in the current political climate. With the appointment of Justice Samuel Alito in 2005 to replace the retiring Sandra Day O'Connor, a conservative majority became a working reality on a great many current and future issues. This dividend of the 2004 presidential election — and, we should mention, this dividend of the conservative revolt against the nomination of Harriet Miers in 2005 — is likely to rank as Mr. Bush's most lasting achievement once his eight years in the White House are concluded.
Each ruling in its own fractious way — Federal Election Commission v. Wisconsin Right to Life, Hein v. Freedom From Religion Foundation and Morse v. Frederick — demonstrates a conservative jurisprudence which could not have come into existence in the pre-Samuel Alito Supreme Court. It is not the conservative jurisprudence of Justices Antonin Scalia or Clarence Thomas. But then, even if not as bold or ideological as many conservatives would prefer, it is markedly different from what preceded it, in a good way, and the strident, even angry dissents from the court's liberal justices confirm that.
Let us start with Federal Election Commission v. Wisconsin Right to Life, over which some of our conservative friends are upset. The complaint is that Chief Justice John Roberts failed to overturn the 2002 McCain-Feingold campaign-finance reforms in this 5-4 split. In that regard we would like to place the ruling in the context of the court's 2003 McConnell vs. Federal Election Commission opinion upholding most of McCain-Feingold. In this decision, also a 5-4 split — in which Justices Breyer, Stevens, O'Connor, Souter and Ginsburg comprised the liberal majority — Justice Stevens and O'Connor signaled in their opinion a willingness to restrict speech which is nowhere to be found in the majority opinion of the present case. The liberal jurists open their opinion with a verbal bow to "the sober-minded Elihu Root," who warned of the need to prevent "the great aggregations of wealth, from using their corporate funds, directly or indirectly." It's clear where this is headed. In context, this week's incremental and careful Wisconsin Right to Life opinion, which creates a test for political advertisements whose net effect is to loosen McCain-Feingold, is part of a story which conservatives should regard as progress.
Hein v. Freedom From Religion, another 5-4 split, is also being viewed as a kind of glass-is-half-empty moment by some conservatives. In this ruling, the court signaled that political attacks on faith-based initiatives should be conducted in the legislative arena, in public and in elections, not in the courtroom via litigation. That is a victory for the democratic process insofar as it pushes contentious social issues out of the courts and back into the court of public opinion, where they belong. The court's opinion threw out a challenge to Mr. Bush's Office of Faith-Based and Community Initiatives, opponents of which will now need to take their case to the public, which by and large supports limited and reasonable cooperation between faith-based groups and government when they fulfill an evident and necessary charitable cause.
Then there is Morse v. Frederick, the "Bong Hits for Jesus" case, a 6-3 split which upholds a school's right to censor student speech if it "can reasonably be regarded as encouraging illegal drug use."
The tearing of conservative shirts over Chief Justice John Roberts makes no sense in light of what could have been. If this Roberts court is so tepid, certainly one cannot hear it in the dissents. Listen to Justice John Paul Stevens' dissent in Morse: "[T]he Court does serious violence to the First Amendment in upholding — indeed, lauding — a school's decision to punish Frederick for expressing a view with which it disagreed." That is no response to tepidity.