How to judge the Roberts Supreme Court

To ask how activist it was is useless. It's wiser to review why the court was either deferential or assertive.

from the July 6, 2007 edition

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In upholding the federal partial-birth abortion ban, the court did defer to Congress, but not in the ordinary sense of allowing legislators to make a choice between competing values such as women's liberty and fetal life.

Instead, it elevated the medical judgment of members of Congress above that of doctors, including the American College of Obstetrics and Gynecologists, which held that the banned procedure was sometimes the safest way to terminate a particular pregnancy.

That was a strange choice. As the Terry Schiavo case showed, Congress is not very good at playing doctor in politically charged areas.

Nor do recent rulings indicate a pattern of deference to Congress. In an area where Congress has more relevant expertise – the conduct of political campaigns and elections – the court did not defer.

It struck down part of the Bipartisan Campaign Reform Act that restricted the ability of corporations to oppose specific candidates at election time, even though it agreed that Congress could attempt to limit the corrupting effect of money on politics. It differed with Congress as to whether this restriction was an appropriate method of doing so, and it followed its own judgment.

Is there a pattern of protecting free speech? No; in the so-called Bong Hits 4 Jesus case, the court allowed public school administrators to punish a student for his speech, even though the speech occurred off-campus and did not disrupt a school event. Speech that promotes drug use, the court said, is inimical to education.

Is there perhaps a pattern of deferring to experts or local authorities such as school boards? No; the court rejected expert medical views in the partial-birth abortion ban case, and it rejected the views of school boards in two cases dealing with attempts to foster integration in public schools in Seattle and Louisville, Ky.

The court did not say that there was anything wrong with the goal of integration. But because the school administrators had chosen to attain integration by using a system that sometimes considered race in student assignment, the court held that they had violated the Constitution. Not only did the court not defer to the judgment of school administrators, it declared that what they had done was constitutionally just as suspect as the South's segregation after the abolition of slavery.

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