GOOD NEWS FROM WASHINGTON, D.C.
by William Perry Pendley
April 1, 2009
After so much bad news from Washington, D.C., it is worth considering some good news. After all, America has seen its most leftward tilt ever; adoption of the trillion dollar stimulus package, and, thanks to the latest federal budget, a national debt that, this time next year, will saddle each American with a $40,000 liability. Meanwhile, President Obama named a tax cheat as his tax chief; Speaker Pelosi decried enforcement of the Nation’s immigration laws as “un-American;” and Senator Reid called Chief Justice of the United States Roberts a liar for allegedly portraying himself as a moderate during his confirmation (alas, it did not work; Reid voted against him), which followed Representative Frank, one of the architects of last year’s housing collapse, calling Justice Scalia a “homophobe” because he would likely vote to uphold the Defense of Marriage Act, which passed the Senate 85-15 and the House 342-67. Not surprisingly, given Reid’s and Frank’s rants, the good news comes from three recent rulings of the Supreme Court of the United States.
In late February, the Court, voting 7-2, upheld the constitutionality of an Idaho law that barred public employees from authorizing payroll deductions for union political activity. After a group of Idaho public employee unions charged that the prohibition violated the First and Fourteenth Amendments, an Idaho federal district court and the U.S. Court of Appeals for the Ninth Circuit struck the ban’s application to local governments. In Ysursa v. Pocatello Education Association, Chief Justice Roberts declared, "Idaho is under no obligation to aid the unions in their political activities. And the State's decision not to do so is not an abridgment of the unions' speech; they are free to engage in such speech as they see fit. They are simply barred from enlisting the State in that endeavor."
In early March, in a 5-4 ruling, the Court limited environmental groups’ ability to file lawsuits. In response to the U.S. Forest Service’s approval of a salvage timber sale on 238 acres of the Sequoia National Forest damaged by fire—using regulations that exempt small sales from the process used for more significant decisions—the groups challenged the sale and regulations. A California federal district court and the Ninth Circuit ruled that, although the groups settled the sale case, they could challenge the regulations. In Summers v. Earth Island Institute, Justice Scalia wrote that the groups lacked standing and rejected a test the dissent suggested: that a group has standing if, after accepting its self-description, “there is a statistical probability that some of [its] members are threatened with concrete injury.”
Days later, in a 5-4 ruling, the Court rejected a reading of the Voting Rights Act (VRA) that would have institutionalized race as a basis for creating districts. The North Carolina legislation breached the State’s “Whole County Provision” to create a district that ensured the ability of a geographically distinct African American population, with cross-over non-minority voters, to elect Blacks’ candidates of choice. A state trial court held the district was required by the VRA’s Section 2. The State Supreme Court reversed. In Bartlett v. Strickland, Justice Kennedy found “no support for the claim that §2 . . . require[s] the creation of crossover districts” and declared it would be an “irony” if the VRA “entrench[ed] racial differences by expanding a ‘statute meant to hasten the waning of racism in American politics’.”
These are solid rulings, consistent with the law and the Constitution; however, many important rulings of the Court lie ahead, including whether a world-class, award-winning mine in Alaska may begin operation; whether a local government may discard the results of a promotion examination that yield what it regards as an insufficient number of minorities; and whether Congress may continue to control the political processes of selected states when the extra-constitutional basis for exercising that authority ended decades ago.
Whether those cases yield further “good news” remains to be seen.
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