What is going on at the Supreme Court?

I think that your confusion is related to a limited understanding of american legal tradition and the various flavors of thought within these various camps. Supremes do not break down into simple liberal/conservative categories, even though that may be how you think of them. In many cases it depends on the specific issue, or how the various parties frame the question before the court.

In the enemy combatant case, Breyer was concerned with what is known as substantive due process. You must have a hearing and be provided with a mechanism for proving your innocence. As an enemy combatant captured on the battlefield you are not subject to the same level of due process that might attach in other situations, but there are a minimum level of standards which must be met (see, for example, his invocation of the Magna Carta during oral arguments.) For Scalia, who favors a more strict reading of the constitution, the standards that apply to a US citizen in the US must also be applied to that citizen overseas when captured by US forces, but a foreign citizen is not protected by the US constitution outside of the US so a different set of standards apply in that case.

When it comes to the online porn case, you need to understand that free speech, like all other rights protected in the constitution, is not an absolute right. There are ongoing situations that attempt to balance free speech with the interests of society. In this case the question before the court was whether or not the act of congress met the standards required to impose a speech limitation: was there a compelling reason to act and was the action taken the minimum required to meet the interests of both society and the individual’s free speech rights. Breyer’s dissenting opinion claimed that the interest in limiting the access of minors to porn was a significant and that the speech in question did not even enjoy first amendment protection since the law clearly stated that it was to be applied to “obscene” speech which has never been protected speech.

Of course, if you really wanted to see what was happening you would take a look at how the justices voted in free speech cases in the past, in which case you would be surprised in the least by the outcome in this case. Thomas is second only to Kennedy (who wrote the majority opinion in this case) in his support of free speech claimants, while Breyer is at the bottom of the list in this case and almost always sides against people claiming that their first amendment rights were restricted.

posted by Jim McCoy at June 29, 2004 01:31 PM #

In a Slate series (A Supreme Court Dialogue) Dahlia Lithwick and Walter Dellinger discuss the way the justices make their decisions. A point Dellinger made was that besides thinking of the justices as liberal and conservative, you can also think of them as pragmatists (e.g., Breyer) and legalists (e.g. Scalia). That’s one reason for the current sometimes strange constellation of votes.

posted by Russ Abbott at June 29, 2004 01:37 PM #

There is some more interesting data here.

posted by Russ Abbott at June 29, 2004 03:26 PM #