Call it a summer ritual.  It's hot, it's humid, and it's disappointing.  That's right, the end of June has come and gone and, after digesting hundreds of pages of decisions issued by the highest court in the land, conservatives have little to be happy about... once again. Another Summer Setback

Call it a summer ritual.  It's hot, it's humid, and it's disappointing.  That's right, the end of June has come and gone and, after digesting hundreds of pages of decisions issued by the highest court in the land, conservatives have little to be happy about... once again.

It was supposed to be different this year, wasn't it?  After all, we won the Judges War -- at least temporarily -- with the nominations and confirmations of two new Supreme Court justices.  Indeed, that was hard work.  Remember the difficulty we had getting a President who had promised us nominees in the mold of Justices Antonin Scalia and Clarence Thomas just to nominate respected reliable conservative jurists.  And that was before we even had to face the real enemy -- a partisan minority in the Senate that continually attempts to give the power to make laws to the only unelected and unaccountable branch of our government.

Nevertheless, those were the battles we won, not the war we continue to lose in the Supreme Court of the United States.

This year's end-of-the-term disappointments were nothing new.

Three years ago, five justices told us that our universities could continue to use an applicant's race in deciding whether to admit him or her for "higher education."  The only caveat was that college administrators had to do so on a case-by-case basis so no one would know just how much their skin color helped or hurt them in getting into the school of their choice. 

Two years ago, six justices ruled that foreign enemy combatants had the right to challenge their detentions in the United States courts despite having been captured abroad and never having set foot on American soil. 

Just a year ago, five justices instructed us that posting the Ten Commandments in a courthouse was an unconstitutional establishment of religion.  Of course, only the most obvious problem with that decision was that, on the same day, the High Court approved the placement of a six-foot-high monolith bearing the Ten Commandments on the grounds of the Texas State Capitol. 

That was nothing compared to the decision a week earlier telling us that local governments could take our homes in order to further economic development.  That's right, the Supreme Court found no constitutional problem with a city using eminent domain to take your home for a developer's business park.

Which brings us to last week.

The Court issued decisions on Monday, Wednesday and Thursday, and, things seemed to be starting out well enough.  The High Court struck down a Vermont campaign finance law that limited not only supporters' contributions but also candidates' expenditures.  In other words, Vermont wanted to stop anyone and everyone from exercising their political free speech and free association rights.  After far too many times of looking the other way, a majority of the Supreme Court finally said the First Amendment could tolerate no more. 

Then there was the death penalty decision, in which the High Court ruled that capital punishment could be imposed even when a jury found that the aggravating circumstances of the murder did not outweigh mitigating factors.  The condemned did repeatedly shoot and stab a mother and burn down the house with a 19-month-old baby still inside, after all.  Finally, after years, some common sense seemed to be reigning in the justices' decisions.

But that was only Monday.

On the final two days of the term, the justices issued a best-seller's worth of paper -- some 499 pages -- very few of which made any common sense.  First there was the Texas redistricting case, all six opinions and 132 pages of it.  Indeed, trying to figure out which portions of the lead opinion garnered a majority of five justices was so difficult that a veteran Supreme Court reporter posted a piece about "counting the votes" in which he admitted that, "[w]hatever the actual vote count is," it was only "possible to approximate what the Court decided."  That frustration was shared by experts in the field, one of whom wrote in the immediate aftermath that the "one clear lesson that we should learn from [the redistricting decision] is that the Court has nothing to contribute here."

Then there was the last day, a day on which the High Court -- or at least five of the justices -- declared that the Geneva Convention imposed obligations upon the United States in fighting the War on Terror against al Qaeda.  There it was, amongst the 185 pages of neatly typeset black and white.  Go figure!

With the term now ended, more than one commentator has observed that the new swing vote, Justice Anthony Kennedy "agonizes" over important decisions, trying to divine the "right" result.  After years of disappointments, we just wish all of the justices would spend their time trying to apply correct law.  Maybe then their decisions would agree with what most of us know as common sense.

July 7, 2006
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