Five to four: The scariest words in U.S. law

By Nancy Jane Moore

Five to four.

The U.S. Supreme Court issued five opinions on Monday, and three of them -- all addressing important issues of the day -- were decided by a vote of five to four. In each case, it was the same justices on each side: The five were Chief Justice Roberts joined by Justices Alito, Kennedy, Scalia, and Thomas; the four were Justices Breyer, Ginsberg, Souter, and Stevens.

• By that five to four vote, the court struck down a significant provision of the campaign finance reform law (usually called the McCain-Feingold law), one that prohibited corporations from using their general treasury funds to run issue ads close to elections. I wonder if the outcome would have been different if the organization seeking to run the ads had been, say, the ACLU instead of an antiabortion group? (Federal Election Commission v. Wisconsin Right to Life Inc.)
• By the same five to four vote, the court weakened the Endangered Species Act, finding that the Environmental Protection Agency didn't have to consider that law in approving state clean water programs. The building lobby group was in the suit as an intervenor, presumably trying to keep the EPA from expanding its criteria for clean water programs. (National Association of Homebuilders v. Defenders of Wildlife)
• By the same five to four vote, the court found that taxpayers didn't have standing to challenge use of federal funds for "faith based initiatives" -- a religious purpose. The court effectively threw out an earlier ruling that said standing by taxpayers should be broadly granted when they are challenging use of federal funds that could violate that part of the First Amendment that prohibits establishment of religion. (Hein v. Freedom From Religion Foundation Inc.)
• In a fourth case, one that also involved First Amendment issues, the vote wasn't quite five to four, because Justice Breyer concurred in part and disagreed significantly with the dissent. However, since Breyer argued that the First Amendment issues should not have been decided at all, his opinion is very different from that of the majority, which apparently ruled that it was okay to block free speech in this case because it involved advocacy of illegal drugs. This is the suit about the kid who held up a banner reading "Bong Hits 4 Jesus" so he'd get on national TV. (Morse v. Frederick)

(In the fifth ruling -- which involved a claim that officials of the Bureau of Land Management harassed a property owner over an easement -- the justices were all over the place, issuing a mix of opinions with odd lineups. It was kind of refreshing.)

This is the same slim majority of justices that upheld the so-called partial birth abortion ban, over Justice Ginsburg's vigorous dissent.

It seems pretty clear that we've ended up with an extremist right-wing majority on the court. Kennedy used to be a swing vote, but now about all we can hope for is that he'll be one again on some cases. It's extremely clear that Roberts, Alito, Scalia, and Thomas are going to move pretty much in lockstep.

This court majority was one of the goals of the religious right -- it's why they supported Bush. Of course, the Democrats in the Senate could have blocked Alito, or even Roberts, with a filibuster, even though they were then the minority, but they were saving that powerful tool for "more important" issues. Funny that they never got around to using it at all.

So now we're stuck with five to four. I wonder what fundamental right they'll chip away at next.