Free Republic

American Enterprise Institute for Public Policy Research AEI Articles Click here for an index of Articles. This article appeared in the February 1995 issue of Commentary. What to Do about the First AmendmentBy Robert H. Bork -------------------------------------------------------------------------------- The text of the First Amendment is quite simple: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." These are not words that would lead the uninitiated...

Legal briefs are due today in an important case the Supreme Court will consider this fall. In the latest iteration of a 16-year legal fight, the Court's decision in Scheidler vs. NOW will have enormous consequences. The federal Racketeer Influenced and Corrupt Organizations Act prohibits engaging in a "pattern of racketeering activity" which it defines to include extortion. The National Organization for Women filed a RICO lawsuit in 1986, claiming that a nationwide conspiracy aimed to shut down the abortion industry through such "extortion" and "racketeering" activity. When this case first reached the Supreme Court, the issue was whether the...

Nothing rattles the American Left so completely as the specter of a conservative, Bush-appointed Supreme Court. And no wonder. Over the last half-century, sympathetic judges have given the Left “progressive” policy outcomes that the voting booth wouldn’t deliver. It is this liberal judicial legacy—everything from affirmative action to partial-birth abortion—that the Left fears a Bush-influenced bench will sweep away. Haunted by the doomsday scenario of a Supreme Court dominated by Antonin Scalia and Clarence Thomas, the Democrats and their allies will fight with every means they can muster to block the appointment of conservative justices. If their ferocious and successful...

Liberals and conservatives should be outraged at last week's U.S. Supreme Court ruling in favor of an Oklahoma school district's mandatory drug testing policy for students involved in extracurricular activities. That 5-to-4 decision, written by Justice Clarence Thomas, was an assault on parental rights. Since drugs were involved, the justices felt free to indulge in judicial activism -- something conservatives such as Thomas are supposed to abhor. There is more anti-drug rhetoric than law in what Thomas wrote. While hearing arguments on the case, Justice Anthony Kennedy scolded ACLU attorney Graham Boyd, who represented students and parents who objected to...

With the end of the Supreme Court's term, it is not clear that the country's long struggle against the pernicious practice of one-person rule has been nearly as successful as our folklore might suggest. Even as we commemorate our rejection of one supreme leader in 1776, lawyers and politicians are studying the latest social and legal decisions mandated by another: Associate Justice Sandra Day O'Connor. Because of her position as the perennial "swing vote" on a divided Supreme Court, O'Connor continues to dictate massive changes for the nation based on her own highly evolving views and priorities. This term alone,...

PRINCETON, N.J. Earlier this year Antonin Scalia decided to share some aspects of his worldview with the public. His inspiration seems to have been the death penalty: recent debates with his colleagues on the Supreme Court and his general reflections on the legitimacy of the state taking to itself the power to kill a citizen. Justice Scalia spoke on these matters at the University of Chicago Divinity School in January, beginning with the ritual disclaimer that "my views on the subject have nothing to do with how I vote in capital cases"; his remarks appeared in the May issue of...

ORT LAUDERDALE, Fla., July 2 — Only a week after the Supreme Court held that juries and not judges must make the factual findings to support death sentences, a trial court here ruled today that Florida's capital sentencing statute, which relegates juries to an advisory role, is constitutional.While the Supreme Court's decision, in Ring v. Arizona, directly affected five states where juries played no role at all in the death penalty decision, it left open the constitutionality of the procedures in four other states, including Florida. Some 800 prisoners are on death row in the nine states altogether, and...

Justice David Souter broke from the Supreme Court majority yesterday, arguing that his colleagues' decision to allow school vouchers will undermine basic American rights and breed social unrest. Souter, of East Weare, cast one of four votes opposing yesterday's decision, which concerned vouchers in Cleveland. In a 34-page opinion quoting Jefferson, Madison and 50 years of precedent, Souter argued against compromising the constitutional separation between church and state, even for the sake of helping kids in one of the nation's worst public school systems. Conflict is certain, Souter argued, if more public money helps students pay for religious schools. Protestant...

WASHINGTON - In June 1990, US Supreme Court Justice John Paul Stevens sat down and wrote a dissenting opinion in a death-penalty case. At issue was whether the defendant had a right to have his sentence determined by a jury rather than by a judge. The majority held that capital defendants had no such right. Yet Justice Stevens wrote: "I am convinced that the Sixth Amendment requires the opposite conclusion." Last week, in a case from Arizona, six other members of the high court embraced the exact position taken by Stevens 12 years ago. As the justices ended their term...

<p>WASHINGTON, D.C. -- Judicial election campaigns in Minnesota and around the country will feel a lot more like other political contests, under a ruling Thursday by the U.S. Supreme Court in a Minnesota case.</p> <p>The 5-4 decision struck down a Minnesota rule limiting what judicial candidates may tell voters.</p>

All five conservative justices vote in favor of a free-speech claimant. All four liberals vote in favor of the government. A seemingly surprising lineup, especially when the issue isn't a traditional left-right question such as campaign finance or religious speech. But this 5-4 split in Thursday's judicial-campaign case (Republican Party v. White) tells us much about how far conservatives and liberals have moved since the 1960s and 1970s. In this case, and in other debates, conservatives have become populist libertarians, who trust the people and free speech — and liberals have become supporters of elite management, who trust the...

ASHINGTON, June 27 — Declaring that the First Amendment protects the right of judicial candidates to express their views, the Supreme Court today struck down a Minnesota rule that prohibited candidates in judicial elections from taking stands on disputed legal or political issues.Because the Minnesota rule is typical of rules governing judicial elections in other states, the 5-to-4 decision had an immediately unsettling effect, casting doubt on rules limiting judicial campaign speech in a majority of the states. Most states elect judges to at least some courts. State judges and leaders of the organized bar have expressed alarm at...

ASHINGTON, June 27 — The Supreme Court, concluding that Cleveland's voucher plan was "a program of true private choice," today upheld the use of public money for religious school tuition in a decisive 5-to-4 ruling that the majority called a logical outgrowth of recent decisions and the dissenters described as a fundamental break with the past.The most important ruling on religion and the schools in the 40 years since the court declared organized prayer in the public schools to be unconstitutional, the decision, issued on the final day of the court's 2001-2002 term, will not end the passionate debate...

Here is a portion of Justice Thomas' opinion in teh voucher case that will have liberals blowing a gasket: While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: “Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities.” Black Education: Myths and Tragedies...

<p>WASHINGTON -- The Supreme Court today struck down limits on what some judicial candidates may tell voters, a landmark free speech ruling that could heat up court campaigns around the country.</p> <p>Nearly 40 states elect some judges, and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts.</p>

FOR IMMEDIATE RELEASE June 27, 2002 LANDMARK CALLS COURT'S VOUCHER DECISION "THE NEXT CRITICAL PHASE IN A NEW ERA FOR AMERICA'S SCHOOLS" Supreme Court Decision in Cleveland School Choice Case Caps 12-year Battle for Competition and Accountability in Education (HERNDON, VA)...Mark R. Levin, president of Landmark Legal Foundation, the first legal group to join the battle for school choice more than a dozen years ago, heralded today's U.S. Supreme Court decision upholding the Cleveland, OH, school voucher program as the "next critical phase in the new era of competition and accountability in America's schools." "Vouchers give hope to families who...

WASHINGTON- The Supreme Court on Thursday struck down limits on what some judicial candidates may tell voters, a landmark free speech ruling that could heat up court campaigns around the country. Nearly 40 states elect some judges, and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts. The Supreme Court, in throwing out strict limits in Minnesota on a 5-4 vote, said the rules impose an unconstitutional gag order. Minnesota is one of nine states that had banned would-be judges from announcing views on "disputed legal or political issues." Most...

Supreme Court backs school vouchers By ANNE GEARAN Associated Press WASHINGTON -- The Constitution allows public money to underwrite tuition at religious schools as long as parents have a choice among a range of religious and secular schools, the Supreme Court ruled today. The 5-4 ruling led by the court's conservative majority further erodes the figurative wall separating church and state and clears a constitutional cloud from school vouchers, an education idea dear to political conservatives and championed by President Bush. Opponents call vouchers a fraud that will only siphon tax money from struggling public schools. The court endorsed a...

Victory for School Choice WEB RELEASE: June 27, 2002 CONTACT: (202) 955-1300 John Kramer Lisa Andaloro [School Choice] See Related Information Washington, D.C.-Today, the U.S. Supreme Court issued its most important educational decision since Brown v. Board of Education, upholding the constitutionality of Cleveland's school choice program. The Institute for Justice and its clients issued the following statements: Clint Bolick "This was the Super Bowl for school choice and the kids won," said Clint Bolick, vice president for the Institute for Justice. "This decision makes good on the promise made nearly 50 years ago in Brown v. Board of Education,"...

(06-27) 07:30 PDT (AP) -- ^Supreme Court gives go-ahead for school vouchers, lowers wall between church and state= WASHINGTON (AP) -- The Constitution allows public money to underwrite tuition at religious schools as long as parents have a choice among a range of religious and secular schools, the Supreme Court ruled Thursday. The 5-4 ruling led by the court's conservative majority lowers the figurative wall separating church and state and clears a constitutional cloud from school vouchers, a divisive education idea dear to political conservatives and championed by President Bush. Opponents call vouchers a fraud meant to siphon tax money...

<p>WASHINGTON — The Supreme Court approved random drug tests for many public high school students Thursday, ruling that schools' interest in ridding their campuses of drugs outweighs an individual's right to privacy.</p> <p>The 5-4 decision would allow the broadest drug testing the court has yet permitted for young people whom authorities have no particular reason to suspect of wrongdoing. It applies to students who join competitive after-school activities or teams, a category that includes many if not most middle-school and high-school students.</p>

URL: http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2002/06/27/national1009EDT0551.DTL (06-27) 07:09 PDT WASHINGTON (AP) -- The Supreme Court on Thursday struck down limits on what some judicial candidates may tell voters, a landmark free speech ruling that could heat up court campaigns around the country. Nearly 40 states elect some judges, and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts. The Supreme Court, in throwing out strict limits in Minnesota on a 5-4 vote, said the rules, while well-intended, impose an unconstitutional gag order. ©2002 Associated Press   more... Minnesota is one of nine states that...

This best-selling recording was performed by the legendary John Wayne. It's finally available as Duke’s spoken-word CD of poetry. It's a must-have for all patriotic Americans... Track listings: 1. Why I Love Her 2. The Pledge of allegiance 3. The Hyphen 4. Mis Raices Estan Aqui 5. The People 6. An American Boy Grows Up 7. Face the Flag 8. The Good Things 9. Why Are You Marching, Son 10. Taps

WEST VIRGINIA STATE BOARD OF EDUCATION et al. v. BARNETTE et al. No. 591. Argued March 11, 1943. Decided June 14, 1943. [319 U.S. 624, 625] On Appeal from the District Court of the United States for the Southern District of West Virginia. Mr. W. Holt Wooddell, of Webster Springs, W. Va., for appellants. Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellees. Mr. Justice JACKSON delivered the opinion of the Court. Following the decision by this Court on June 3, 1940, in Minersville School District v. Gobitis, 310 U.S. 586 , 60 S.Ct. 1010, 127 A.L.R. 1493, the West...

June 22, 2002 Ruling Barring Execution of Retarded May Not Lead to Further RestrictionsBy LINDA GREENHOUSE ASHINGTON, June 21 — Despite the clarity of the Supreme Court's decision to abolish the death penalty for mentally retarded offenders, the court's next move is uncertain and the impact of the ruling on the overall death penalty debate is far from clear. While it is possible that the decision in Atkins v. Virginia marked a new direction for a court that has been notably deferential to the states on death penalty questions, it is just as likely that the decision was a singular...

High Court: Executing the Mentally Retarded Is Unconstitutional June 20 — Reversing previous rulings, the Supreme Court ruled today that executing the mentally retarded constitutes cruel and unusual punishment and is therefore unconstitutional.The court's 6-3 ruling applies to mentally retarded killers and does not address the constitutionality of capital punishment in general. The justices cited a shift in public attitude toward the practice of executing mentally retarded killers since the court ruled on the issue more than a decade ago. In a 1989 opinion, the high court ruled it was not unconstitutional to execute the mentally retarded under the Eighth...

June 21, 2002 Supreme Court Finds Law on Educational Privacy Isn't Meant for IndividualsBy LINDA GREENHOUSE ASHINGTON, June 20 — The federal law that requires schools and colleges to protect the privacy of students' educational records does not establish a personal right to privacy that can be enforced in court, the Supreme Court ruled today. The 7-to-2 decision overturned a ruling by the Supreme Court of Washington and rejected the reasoning of every federal appeals court to have considered the question since Congress passed the law, usually known as the Buckley Amendment, in 1974. Writing for the majority today, Chief...

WASHINGTON, June 20 — The Constitution bars the execution of mentally retarded offenders, the Supreme Court declared today in a landmark death penalty ruling based on the majority's view that a "national consensus" now rejected such executions as excessive and inappropriate. Of the 38 states that have a death penalty, 18 now prohibit executing the retarded, up from 2 when the court last considered the question in 1989. This "dramatic shift in the state legislative landscape," especially when anticrime legislation is extremely popular, "provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the...

Court Disallows Executing Retarded Thu Jun 20,10:37 AM ET WASHINGTON (AP) - A divided Supreme Court reversed itself Thursday and ruled that executing the mentally retarded is unconstitutionally cruel. The 6-3 ruling is confined to mentally retarded killers, and does not address the constitutionality of capital punishment in general. The majority's view reflects changes in public attitudes on the issue since the court declared such executions constitutional in 1989. Then, only two states that used capital punishment outlawed the practice for the retarded. Now, 18 states prohibit it. "It is not so much the number of these states that is...

<p>A police posse seeking to search passengers and their luggage on buses or other public transportation need not warn suspects that they have a right to refuse a search and leave, the Supreme Court ruled yesterday.</p> <p>Although one pro-police group voiced qualms about the 6-3 decision that nullified an appeals court's ground rules requiring police to warn suspects before searching for drugs and weapons, the Justice Department predicted that it will buttress anti-terrorism efforts.</p>

WASHINGTON (Reuters) - The U.S. Supreme Court ruled on Monday that an ordinance requiring Jehovah's Witnesses or other door-to-door advocates for religious or political causes to get a permit violates free-speech rights. The high court ruled for a local congregation of Jehovah's Witnesses and the Watchtower Bible and Tract Society of New York, a nonprofit publisher of church literature, in striking down the law regulating uninvited peddling and solicitation. The justices, by a 8-1 vote, ruled the ordinance in the tiny village of Stratton, Ohio, infringed on the rights of the Jehovah's Witnesses, a faith whose members go from house...

<p>Americans have grown accustomed to seeing judicial officials strike down laws and government regulations in the name of preserving adequate breathing space for expression. Again this term, which is quickly coming to an end, the U.S. Supreme Court used it judicial review powers to overturn legislative action that might "chill" expression that was far from the minds of James Madison and the other members of Congress who labored over the language of the First Amendment.</p>

The U.S. Supreme Court refused Tuesday to consider the case of a Decatur man ordered to pay child support even though DNA proves he's not the father. The court is "ignoring paternity fraud," said the plaintiff's attorney, Jeffery M. Leving of Chicago. "It's no different than ignoring DNA testing showing a convicted murderer wasn't guilty of murder." Carnell A. Smith, 41, had been paying child support to his ex-girlfriend for 11 years. Two years ago, when the court ordered him to pay more, he got a blood test that showed he was not the child's father. Smith went to court...

WASHINGTON - The Supreme Court agreed Monday to referee a congressional boundary dispute from Mississippi, a victory for Democrats who are contesting a plan that helps Republicans. The case will be the first reviewed by the court over boundaries drawn using 2000 Census data. Plans by many other states also are being contested. The court did not intervene in time to affect this year's election, however. Primaries were held last week in districts favorable to Republicans approved by a federal panel earlier this year. Mississippi is losing one of its five congressional seats because of sluggish population growth in the...

WASHINGTON - Employers are not required under US civil rights laws to hire disabled workers whose mental or physical handicap might endanger their own health or safety on the job. In a major decision restricting the scope of the Americans With Disabilities Act (ADA), the US Supreme Court has ruled that Congress did not intend to force employers to hire workers with disabilities that might pose a direct threat to others as well as to themselves in the workplace. Instead, Congress left the issue open for interpretation by federal agencies like the Equal Employment Opportunity Commission (EEOC) to enact regulations...

WASHINGTON (AP) -- A sharply divided Supreme Court ruled Monday that states can limit privileges of sex offenders who won't admit to crimes as part of therapy. The 5-4 ruling, affirming a Kansas inmate rehabilitation program, could spawn similar efforts in other states. Inmates, who want to keep their privileges, may be forced into therapy and be required to admit past wrongdoing that could be used in future prosecutions, the court held. ``Sex offenders are a serious threat in this nation,'' Justice Anthony M. Kennedy wrote for the majority. He said states have an important interest in rehabilitating those inmates....

ASHINGTON — There are dissenting opinions at the Supreme Court, and then there are declarations of war. These days, federalism means war. The court's majority has been expanding the states' immunity from the reach of federal law for some time, and their latest such move provoked four justices into signing an unusual dissenting opinion in which they made clear that they were not simply disagreeing with the decision at hand. Rather, they were taking a public vow to remain in dissent from the majority's open-ended view of the sovereign powers of the individual states."Today's decision reaffirms the need for...

REVIEW & OUTLOOKTrial-Lawyer TrifectaAs John McCain kept telling us, campaign finance reform was going to reduce if not end special-interest influence in Washington. Perhaps the Senator forgot to tell the plaintiffs' bar, which is dominating the current Congressional session as completely as any lobby ever has.From asbestos-litigation reform to terrorism insurance to even the patients' bill of rights, the tort lawyers areblocking whatever they don't like. So great is their clout in the Senate that the lawyers are even inducing Democrats to kill their own self-professed priorities. Ed Hyman's ISI Group calls it the "trial lawyer trifecta," but even that...

The Supreme Court is set to reject a teenager's challenge, in a victory for the RightTwenty-seven million schoolchildren are facing the prospect of random drug testing after a landmark court case described by self-styled religious fundamentalist 'drug warriors' in the United States as their greatest victory. It is a startling example of the ideological shift in American politics since George W. Bush moved into the White House. The Supreme Court is expected within the next few days to rule against a teenager from the Midwest who was forced to undergo a drug test when she signed up to sing in...

The man charged by President Bush with screening potential U.S. Supreme Court justice nominees believes the Constitution is a living document and that only the nine black-robed brethren have sufficient understanding of the document to explain to the people what it means. This should be an astonishing and disturbing revelation from Judge Alberto Gonzales, counsel to the president, for all those citizens who voted for Bush primarily because they thought his Supreme Court appointments would be remarkably different and better than his opponent's. I heard Gonzales make this statement with my own ears in a private dinner meeting recently. Asked...

A Narrow View of Federal Power Chief Justice William Rehnquist and his fellow conservatives have made no secret of their desire to alter the balance of federalism, shifting power from Washington to the states. Yesterday the Supreme Court took another step in that direction, ruling 5 to 4 that federal agencies may not hear complaints by private parties against states. The decision finds little support in the Constitution's text; it is the sort of interpretive leap that, were it taken by liberal judges, conservatives would denounce as "activist." And its cramped view of federal power could harm vulnerable people who...

May 29, 2002 Justices Expand States' Immunity in Federalism CaseBy LINDA GREENHOUSE ASHINGTON, May 28 — The Supreme Court, its justices as bitterly divided as ever over where to draw the line between federal and state authority, today expanded the concept of state sovereignty to shield states from having to answer private complaints before federal agencies. The 5-to-4 decision came in the term's most important federalism case, a dispute between the Federal Maritime Commission, which enforces the federal Shipping Act, and the state-owned Port of Charleston, S.C. A cruise line went to the commission to complain that the port had...

WASHINGTON - The US Supreme Court has once again upheld state sovereignty at the expense of the authority of the national government in a key decision addressing the balance of power between the states and Washington. This time, the high court's conservative wing has achieved this by siding with the South Carolina State Ports Authority in a dispute over whether a gambling ship should have access to the port at Charleston. At issue was whether the operator of the gambling ship could file a federal complaint against the state ports authority to be adjudicated by the Federal Maritime Commission (FMC)....

<p>The Supreme Court yesterday agreed to decide whether Ku Klux Klansmen have a free-speech right to burn a cross that intimidates or frightens people who feel targeted in the absence of direct threats.</p> <p>Virginia appealed a lower-court ruling that threw out a $2,500 fine against Pennsylvania KKK member Barry E. Black, who was defended by American Civil Liberties Union lawyer David P. Baugh, a black man who opposes criminalizing hate speech.</p>

Supreme Court: State Immunity in Shipping Case Tue May 28,11:07 AM ET By James Vicini WASHINGTON (Reuters) - In a further dilution of the federal government's power, a divided U.S. Supreme Court ruled on Tuesday federal regulators could not intervene in a dispute between a private operator of casino gambling ships and a state agency. By a 5-4 vote, the high court rejected arguments by the Federal Maritime Commission that it has the power to decide a claim by South Carolina Maritime Services, a private firm that operates vessels for casino gambling, in its dispute with South Carolina port officials....

ANNE GEARAN, Associated Press WriterTuesday, May 28, 2002 ©2002 Associated Press URL: http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2002/05/28/national1007EDT0539.DTL (05-28) 07:19 PDT WASHINGTON (AP) -- The Supreme Court said Tuesday it will consider whether some state laws that ban cross burning violate the free speech rights of Ku Klux Klansmen or others. The high court's ruling, expected sometime next year, could clarify how far states may go in banning a practice associated with racial hatred and intimidation, but accorded some constitutional protection. The court agreed to hear an appeal from Virginia, where a state court struck down a 50-year-old law that made it a crime to...

<p>The Department of Education has placed restrictions on a popular Boy Scouts program in public schools after two groups complained about the Scout Oath's reference to God, as well as the organization's anti-gay policy.</p> <p>Although Boy Scouts activities during school hours will be curtailed, the organization will be allowed to continue its Learning for Life program. The Aloha Council of the Boy Scouts of America has conducted the program in about 50 public schools for more than 25 years.</p>

May 21, 2002 Right to Counsel Expanded by a Divided Supreme CourtBy LINDA GREENHOUSE ASHINGTON, May 20 — The Supreme Court expanded the right to counsel today, ruling 5 to 4 that a state may not impose even a suspended sentence — in which eventual imprisonment may be only a remote possibility — on an indigent defendant for whom it has not appointed a lawyer. The decision left the justices deeply split not only about the constitutional analysis but also over how burdensome the ruling would prove for the states by sweeping thousands of misdemeanor cases within the framework the...

May 21, 2002 Laws on Sex Offender Lists to Get Further LookBy LINDA GREENHOUSE ASHINGTON, May 20 — The Supreme Court today substantially broadened its review of laws under which states keep the public informed of the whereabouts of convicted sex offenders who have been released from prison. Accepting an appeal from Connecticut, the court agreed to decide whether listing all the offenders in an undifferentiated registry — without making individual determinations of who among them still poses a danger — violates the constitutional guarantee of due process. Prodded by a federal law that threatened to withhold law enforcement money,...

<p>A unanimous Supreme Court ruled yesterday that an indictment's technical error does not shield "large-scale" drug criminals from the maximum sentence.</p> <p>"The fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments," said the 9-0 opinion that threw out portions of a historic and often cited 1887 Supreme Court decision.</p>