If the spirit of any one justice typified the ideologically rootless U.S. Supreme Court session that ended Monday, it was that of the late Potter Stewart.
In 1964, Stewart foundered trying to define obscenity before ending with the immortal words, “I know it when I see it.”
Likewise, jurisdictions wrestling with whether or not displaying the Ten Commandments on public property is constitutional were left with little guidance other than coming up with a scheme and letting the justices “see it.” The high court ruled 5-4 Monday that framed copies of the Decalogue in two Kentucky courthouses crossed the line between separation of church and state. But in a second 5-4 ruling, with Sandra Day O’Connor providing her usual swing vote, the high court held that a 6-foot granite display of the Ten Commandments on the grounds of the Texas Capitol was constitutionally cool.
The saving grace of the Texas monument seemed to be that – like a similar portrayal in the Supreme Court itself – it was part of a larger display paying tribute to the evolution of the nation’s legal codes. The Texas monument is one of 17 historical displays on the 2-acre grounds of the Capitol. But given that there were eight majority, dissenting and concurring opinions in the two cases, the issue is all but certain to spawn more litigation.
In contrast, the high court stayed well within settled law in a 7-2 ruling that a Colorado woman could not sue Castle Rock police for failing to prevent her estranged husband from killing her three young daughters. Had Jessica Gonzales prevailed in her claim, crime victims of all kinds could have unleased a flood of litigation against police departments.
Justice John Paul Stevens and Ruth Bader Ginsburg dissented, arguing Gonzales had a due-process right to have police enforce a restraining order against her husband. Stevens and Ginsburg, while misguided, were at least consistent with their votes in two earlier cases where the high court underscored a sweeping role for government. The two joined Anthony Kennedy, Antonin Scalia, Stephen Breyer and David Souter in the recent 6-3 ruling upholding a federal ban on medical marijuana grown and used solely within a state on the dubious grounds it had an effect on interstate commerce. Chief Justice William Rehnquist, O’Connor and Clarence Thomas dissented.
Stevens won another victory for his expansive view of government power last week in a 5-4 ruling that government can condemn private property to benefit other private interests as long as it pays compensation. Souter, Ginsburg, Breyer and Kennedy joined that Wal-Mart uber alles majority while Rehnquist, O’Connor, Thomas and Scalia dissented.
Those recent rulings underscore not just the narrow margin of votes on the current court but the significance that Rehnquist, 80 and struggling with cancer, may be forced to retire soon. O’Connor, 75 and herself a cancer survivor, has been mentioned as possibly retiring. Stevens, 85, has had prostate cancer.
It has been 11 years since this remarkably fractious court has had a new member. But the narrowness of its decisions as well as their far-reaching scope may make the debate in Congress over confirmation of new justices – when they inevitably do come – even more divisive than the court’s rulings themselves.
