• Supreme Court: Dodging stereotypes Supreme Court: Dodging stereotypes From the St. Louis Post-Dispatch – July 4, 2004 U.S. Supreme Court: Dodging stereotypes Few people consider U.S. Supreme Court Justice Antonin Scalia a champion of the rights of criminals. Nor
• Supreme Court: Dodging stereotypes
Supreme Court: Dodging stereotypes
From the St. Louis Post-Dispatch – July 4, 2004
U.S. Supreme Court: Dodging stereotypes
Few people consider U.S. Supreme Court Justice Antonin Scalia a champion of the rights of criminals. Nor is Justice Clarence Thomas often viewed as a guardian of civil liberties. But the justices defied stereotypes during an historic term that saw the court take the rare step of limiting a president’s power during wartime.
This isn’t to say that the conventional wisdom is wrong about the conservative-liberal split on the court that all but anointed George W. Bush as president. But the stereotypes are overdrawn.
Despite his image, Justice Thomas is actually one of the court’s most consistent supporters of free speech. He demonstrated that again this term by providing the fifth vote against the overly broad Child Online Protection Act, and with a stout free-speech dissent to the decision upholding the McCain-Feingold campaign finance law. Justice Thomas’ votes show that freedom of speech cannot easily be labeled a liberal-conservative issue. In fact, it was the more liberal justices – Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens – who limited speech by approving McCain-Feingold.
Justice Scalia, meanwhile, joined by Justice Stevens, wrote the strongest defense of civil liberty in the court’s rejection of Mr. Bush’s claim to unchecked power to lock up enemy combatants without a lawyer or a hearing case. It was one of the most important decisions of the term. If the president wants a citizen locked up, Justice Scalia said, the government has to file criminal charges against him. Justice Scalia, an adherent of the “original meaning” philosophy of constitutional interpretation, pointed out that President Thomas Jefferson was forced to use the criminal process in arresting Aaron Burr for subversion.
Justice Scalia also was the decisive fifth vote in ruling that a judge cannot increase a criminal’s sentence based on any factor that a jury did not consider – a libertarian decision that may topple the federal sentencing guidelines.
None of this means that Justice Thomas and Scalia are now swing voters who decide close cases. They seldom are.
Nor does it mean that this is suddenly a liberal court. Such basic rights as the right to an abortion hang by a vote or two that could well shift with the next presidential election.
What is reassuring, though, is that in the term just completed, the justices were able to put principle ahead of politics as they charted a course through turbulent times.
