As we consider the Independence Day celebrations that just passed, its worth noting that we're marking the occasion a bit late. The real revolution that happened when the U.S. Supreme Court ended a term bound to affect our lives in significant ways in the months ahead. The 68 cases the Court heard this session involved a range of social issues -- including campaign finance, school integration, employment discrimination, wage and overtime regulation, and reproductive rights. Two opinions issued last month, in the final hours of the Court session, show how judicial decisions can cause fireworks in the real world.
Fundraising totals for the first quarter of the 2008 presidential race were off the charts. Combined, the presidential candidates raised over $130 million, and the fundraising reports for the second quarter are expected to be as high, or even higher. Presidential candidate Senator Barack Obama announced he had raked in $32.5 million between April and June, even more than he collected the first quarter. By all indications this will be the most expensive presidential race ever. This makes the ruling in FEC v. Wisconsin Right To Life, all the more significant. There, the Court cut back on the 2002 Bipartisan Campaign Reform Act, which, in an effort to reduce money's influence in elections, required corporations and unions to form PACs to run certain kinds of advertising close to Election Day. Federal law has for decades barred unions and corporations from using funds from their own treasuries to broadcast campaign ads. Before BCRA, unions and corporations were allowed, however, to use their money to bankroll ads that did not expressly tell the public whom to vote for or against ("express advocacy") -- on the theory that the ads were merely educating the public about an issue ("issue advocacy"). Congress passed BCRA after finding the "issue advocacy" loophole had led to a sea of advertisements purporting to be about issues, but really focused on supporting or opposing candidates. Three years ago the Supreme Court upheld the law's constitutionality. This time around, in a challenge to the manner in which the statute was applied, the Court said Wisconsin Right to Life has a fundamental right to engage in political speech, and that BCRA cannot restrict ads that could be viewed as issue-focused (even though they mention a candidate, right before an election, and are targeted to the candidate's constituents). The upshot -- expect more union and corporate "issue ads" leading up to the '08 election subject to less regulation than other campaign ads.
This term's ruling in Parents Involved in Community Schools v. Seattle School District No. 1, et al. struck a mighty blow to a landmark case. A five Justice majority of the Court went old school, stepping back from the 1954 decision in Brown v. Board of Education requiring schools to desegregate, and invalidating attempts by democratically elected school boards in Louisville, Kentucky and Seattle, Washington to ensure racial diversity throughout their districts. The school districts, according to the Court, inappropriately considered the race of individual students when placing them in a manner that ensured racial diversity in schools throughout the districts. Justice John Paul Stevens noted the "cruel irony" of the majority's reliance on the Brown decision to invalidate these integration efforts. All together the five opinions written in the case refer to that decision over 90 times, drawing opposite conclusions as to its meaning. Despite the disappointing result, it could have been worse. In his concurrence, Justice Kennedy sided with the majority to invalidate the integration plans. But he sided with the others -- creating a majority -- in support of using race in some circumstances to achieve integration and of the school districts' compelling interest in maintaining racial diversity. The trajectory of these desegregation cases was intriguing. When the more moderate Justice Sandra Day O'Connor was on the Court the justices decided not to review a case challenging a similar desegregation plan in Lynn, Massachusetts. Nothing changed in the law or the land to upset that 2005 ruling upholding the plan -- except Justice O'Connor's departure and the arrival of Chief Justice Roberts and Justice Alito. In a critique of his colleagues from the bench Justice Breyer, said "[i]t is not often in the law that so few have so quickly changed so much." By invalidating the Louisville and Seattle plans, the Court imperiled hundreds of voluntary plans across the country. In Massachusetts alone -- the site of violent anti-integration protest in the 1970's -- twenty such plans are now threatened, if not invalidated, including the one in Lynn. School may be out for summer, but well-meaning school administrators will be working hard in the months ahead to figure out how to achieve or preserve racial diversity without running afoul of the Court's decision.
Both the campaign finance and desegregation decisions erect barriers to justice in our diverse society and impede the ability of people without large treasuries to participate in our democracy. But something else happened during the term that offers a beacon of hope for progressives discontented by the Court's rulings. A New York Times/CBS News/MTV poll found that the majority of young people are "leaning left" on social issues like immigration (allow more of it), gay marriage (legalize it), health care (provide it to everyone and pay for it through tax dollars), and global warming (make it a top policy priority). They are also tuned in to the election and optimistic about democracy in America. Of the 17-29 year olds polled, over half (58%) said they are paying attention to the presidential race and over three-quarters (77%) said people of their generation would influence the outcome of the race. Almost half (49%) of the young people said they were "enthusiastic" about a presidential candidate, with Sen. Obama, an African-American man, and Senator Hillary Clinton, a white woman, garnering the highest plurality among enthusiasts (18% and 17%, respectively). Two-thirds of those polled (66%) said they thought most people they know would vote for a presidential candidate who is black.
How will this youthful optimism about democratic participation and opportunity for all in our diverse society square with Court rulings that make achieving those ideals more difficult? Despite his failed domestic proposals and international misadventures, President Bush's choices for the Court, in short order, have effectively construed the law to reflect conservative values and world view. What are progressives to do? We can hope for further jurisprudential shifts to the left on the Court, especially by Justice Kennedy. It happens. When the first President Bush nominated Justice Souter, an unknown former prosecutor from New Hampshire with reportedly solid conservative credentials, to replace Justice William J. Brennan, Jr., Senator Ted Kennedy voted against him. Since then, perhaps inspired by the spirit of the man he replaced, Justice Souter has emerged as a passionate and eloquent progressive voice. We can also appeal to law makers of all stripes -- both progressives and conservatives troubled by judicial decisions that undermine the ideals reflected in the polling data.
Declaring our freedom on July 4th was just the start. If we want a just society, we must keep participating in our democracy as well.