Comments on Recent Supreme Court Actions

There are four things of interest to come out of the Supreme Court the past few days.  Obviously, the first one is the decision allegedly striking down affirmative action in Michigan.  It should be mentioned straight up and foremost that the decision did nothing of the sort.  The Court upheld the right of the people of Michigan to pass a state constitutional civil rights amendment which prohibited discrimination and preferential treatment of minorities in state college admissions and public employment.  A clear reading of the statute clearly indicates that the measure was race-neutral.  Colleges and the state are still free to take race into account in college admissions, but they cannot show preferential treatment in order to achieve the desired goals of diversity.

Admittedly, this is a confusing, convoluted case where “no” means “yes,” and vice versa.  Adding to the confusion is that it is more a plurality decision even though technically it will go down as 6-2 (Kagan recused herself).  The main thing to get over is the so-called “political restructuring doctrine.”  Here, a state ballot initiative that makes it more difficult for a minority to obtain a benefit through the political process will be looked upon with greater scrutiny.  The primary holding believes that this decision can be easily squared with previous Court jurisprudence in this area.  Scalia and Thomas believe that this jurisprudence should be overturned as the solution.  Breyer then writes a separate opinion which supports the majority decision insofar as higher education.  Here, the law proscribes against discrimination and preferential treatment and it cuts both ways because discrimination and preferential treatment harms blacks, whites, Hispanics and Asians alike.  For every borderline qualified minority granted college admission in the name and interest of diversity, there are numerous other minorities and non-minority students denied admission.  That is a problem the political restructuring doctrine must overcome looking forward.  In California, for example, the growing Asian community, because of state affirmative action programs, are finding themselves on the short end of the stick with respect to other minority communities.  Thus, what becomes of fate of a program when designed to benefit one minority adversely affects another minority?

If anything, the entire shift in thinking illustrates how far the concept of affirmative action has strayed over the years.  To this writer, the concept means making a good faith effort to recruit, train, retain and promote qualified candidates regardless of race, gender or whatever.  But, the key word is “qualified.”  The easy way out is to establish quotas, but they are illegal so we play word games and have de facto quotas.  Slowly, this Court is recognizing the movement towards a more color-blind society despite the Left’s assertion that we are moving back to an era of Jim Crow.

The second decision was the Navarette vs. California decision.  Here, an anonymous 9-1-1 call about an erratic driver led to a police stop which eventually led to an arrest.  The narrative came down to whether such an anonymous call rose to the level of “probable cause.”  Although this may not be a good test case- the driver was caught with a substantial amount of marijuana and was obviously guilty of something- it reminds this writer of the decision about obtaining DNA samples in Maryland without a warrant.  The dissent, which included Scalia, seemed to anticipate the problems here.  What is to stop anyone from anonymously calling police to report an alleged something-or-other in order to harass someone else with whom they have/had a grudge?  The fact is that before being pulled over, the driver was not showing erratic driving behavior.  The sole reason for being pulled over was the anonymous call.  In the absence of the smell of marijuana and the marijuana in the trunk, this would have been a “he said/she said” scenario police stop and that is not probable cause.  Scalia notes that instances of drunk driving, for example, are serious cases where these calls could be considered “probable cause.”  But, he also correctly notes that murder is an equally serious offense and a greater degree of probable cause is required.  To many, the response may be: “So what?  If the person has nothing to hide, no harm/no foul.”  That is exactly the mindset that the Fourth Amendment was designed to guard against.

Third, the Court heard a free speech case (kind of) out of Ohio- Susan B. Anthony List vs. Driehaus.  That political advocacy group bought billboard space and called out then-Congressman Driehaus for his support of government-funded abortion in Obamacare.  Ohio has a law against untrue statements in political campaigns and Driehaus filed a complaint.  A preliminary review board decided that SBA was “likely” in violation of the law.  As a result, the owner of the billboard had the message removed.  That was in 2010.  SBA contends that because of the actions in 2010, the decision had the effect of chilling their political free speech in subsequent elections.

This is an interesting case since it centers on standing and whether SBA suffered a “justiciable” harm under Article III of the Constitution.  Not directly in question is whether the actual statute is unconstitutional.  In effect, SBA is merely stating a request to have their day in court.  The Circuit Court of Appeals for the 6th Circuit essentially blocked that effort.  To this writer, given the totality of the circumstances, the actions by Ohio serve as a prior restraint on political free speech.  The whole argument creates a legal Catch-22 where the SBA in this case is caught in the middle and their best solution- without having their day in court- is simply not to engage in the contested speech.  Interestingly, the state of Ohio was left defending an action under a statute they believe is likely unconstitutional.

The most interesting aspect was the characterization by counsel for the SBA that the Ohio commission was the “ministry of truth,” thus conjuring up images of George Orwell’s “1984.”  Towards the end of argument, Scalia was likewise referring to them as the “ministry of truth.”  And like Orwell’s Ministry of Truth where lies were truth and truths were lies and where your asserted truth had to be defended, SBA finds themselves in the same circumstances of not having to defend their statements to this “ministry” because they are denied their day in court.  Wouldn’t the better solution be for Driehaus to rebut or defend his votes on Obamacare rather than deny a group a political message?

The final “case” is not a case at all, but a potential one out of New Jersey.  The petition reached the Court and was placed on last Friday’s conference calendar.  However, no decision was made and the case was “relisted” which indicates that the Court has some internal debate or there are other cases potentially percolating through the system which have similar questions.  The case in question involves New Jersey’s stringent concealed carry permit law which requires the applicant have a “justifiable reason” for the permit.  Simply saying “for self defense” will not suffice.  Such is the case in many a liberal state in this country.

Should the Supreme Court take the case, it will be their first direct Second Amendment case since the McDonald case out of Chicago.  Specifically, this case must necessarily come to a decision of whether the fundamental right to self-defense- hence, allowing possession of a concealed weapon for self defense purposes- extends beyond the home.  Although we on the Right recognize the inherent logic of this argument to the point of obviousness, the fact concealed weapon laws are so stringent, so enforced, and so rarely are permits granted indicates that those on the Left simply do not grasp the obvious.

The 3rd Circuit, which upheld the New Jersey law, equated the 2nd Amendment as a “privilege unique among all other constitutional rights” since “bearing arms” has the potential to convey death or serious injury.  They concluded that even if this were not true, the law was no burden nor did it meet the criteria as a prior restraint.  In fact, they said that the legislature is within their powers to pass such a law based upon “prediction” without any supporting evidence.

It should be noted that one of the petitioners in this case denied a permit owns a company that services and stocks ATM machines with cash while another is a sheriff’s deputy with the power to arrest throughout the state.  And to illustrate how onerous the “justifiable reason” standard is, in a state with 6.7 million residents there are only 1,195 concealed carry permits in New Jersey as of 2011.  Considering that state supreme courts are 4-3 as to whether the right to self defense extends beyond the home and there is now a split among federal circuits, one would think that the time is ripe for the Supreme Court to step in and decide the issue.