The landmark Vietnam War case, Tinker v. Des Moines, in which the Court ruled against the Des Moines school board for suspending students' wearing black armbands as a sign of protest against the war, perfectly laid out the grounds for when students' free speech rights should be limited. In his brilliant opinion, Justice Abe Fortas declared “the school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners….this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.” Fortas further declared “school officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.” I believe the Roberts Court failed to properly apply the Tinker standard. Frederick's sign was not displayed on school grounds nor did it disrupt the relay event or school day. It was simply a student displaying a banner for probably the only time national television cameras will come to his school. No student at the school has ever publicly claimed they saw Frederick's banner as inappropriate or offensive.
My greatest grievance, however, lies with the direction of the Supreme Court in the coming years. At 52, Roberts, a conservative judge, is likely to preside over the Court for well over the next 25 years. Justice John Paul Stevens, at 87, is nearing the end of his time on the bench, and with less than 18 months left in Bush's presidency, should his seat on the Court become vacant, another conservative will be nominated and the conservative wing will gain that crucial fifth vote on close decisions. On the current court, the aforementioned Roberts, along with Antonin Scalia, Clarence Thomas and Samuel Alito, are conservatives while Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer, and David Souter form the liberal wing. Justice Anthony Kennedy is viewed as the moderate on the Court, though he tends to vote with the conservative bloc on key issues as he did this week.
When our constitution was adopted over 200 years ago, there was no Bill of Rights. It took four years of contentious arguments between some of our nation's founding fathers before a Bill of Rights was finally added to the Constitution. The leaders understood the importance of protecting civil liberties, especially coming off the Revolutionary War, where some of the major issues at stake included their rights. The U.S. Supreme Court has been charged with defining which liberties are entitled to protection from the government and which ones are not permitted. The liberties of most Americans are essentially decided by nine of the brightest and most qualified judges the country has to offer. They are the custodians of our liberties when it comes to upholding the rights that the U.S. Constitution guarantees every American. Many of the Court's early landmark cases, notably Plessy v. Ferguson (1896) (which famously ruled separate but equal when it comes to segregation), addressed the social and moral issues of the time. In time, the Court, especially the Warren Court of the 1950s, overturned many of the early landmark cases such as the aforementioned Plessy. The Warren Court, in overturning the earlier decisions laid the seeds for the succeeding Court under Chief Justice Warren Burger, under whom far-sweeping individual rights were upheld or granted, including Roe v. Wade. The Rehnquist Court upheld any major challenges to precedents established in the preceding courts and placed a lot of power in the hands of state governments. The pressure then falls on the Roberts Court to continue the tradition, a tradition they are largely ignoring. Though they have yet to rule on any of the “major” issues, but should they decide on a major issue, I am concerned about the direction they may eventually vote as exemplified their decision in the Morse. Whatever side of the political spectrum one views life, there is little doubt that certain issues, such as abortion and gay rights, are very important to the social direction of America that these issues are highly contested at all levels of government.
In law, precedent is often referred to as stare decisis (Latin for “let it stand”). Precedents form one of the primary features of common law, our nation's law system. In the history of constitutional law, there have been very few key issues the Court has ruled overturned e.g. Brown v. Board (1954) overturned Plessy v. Ferguson. Breaking away from precedents on one issue can be very dangerous because it opens the door to subsequent re-evaluation of other cases which may result in the Court overturning the precedent. Yesterday's rulings concerning using race to promote diversity further highlight my grievances with the direction that the Roberts Court is heading. In yet another 5-4 decision, the Court held in Parents Involved in Community Schools v. Seattle School District, and Meredith v. Jefferson County Board of Education that schools may not use race as a factor in order to achieve diversity. In my study of constitutional law, one thing that I vividly remember reading over and over was this concept of “compelling interest”- if a state law or policy has a compelling interest that does not infringe on individual liberty, then that law or policy is constitutionally protected, especially by the equal protection clause of the 14th amendment. As far as I am concerned, the states of Washington and Kentucky have a compelling interest in promoting diversity in their schools, with race being a component of achieving that compelling interest. Achieving diversity in our schools was the sole basis for the Court's decision in Brown v. Board. The ruling essentially breaks away from the very principles that Brown has promoted in our schools since desegregation.
Most of America's neighborhoods are segregated and that is one of the main reasons many school districts have used race as a basis for achieving diversity in their schools - the very diversity they don't find in their neighborhoods. Race is a heavy component of achieving diversity, especially in our schools. Though I believe a child should not be denied education on the basis of his skin color, either black or white, fact remains that race has to play a role in achieving diversity in our schools because if it doesn't, what will be the criteria for achieving diversity? Evaluating the kinds of music the children listen to??? In his brief but emotionally charged dissent, Justice Stevens stated “it is my firm conviction that no member of the Court that I joined in 1975 would have agreed with today's decision.” In a parting shot at Alito and Roberts, Justice Breyer, the most outspoken of the liberal wing towards yesterday's decision, lamented that “it is not often in law that so few have so quickly changed so much.” I concur with Justice Breyer that because if the voting record of the Roberts Court is any indication, the laws in this country will change a lot more in the years to come.