MIXED BAG

Supreme Court's Recently Ended Session Gave Cause For Joy And Disappointment

In terms of the number of people affected, the most important decision of
the U.S. Supreme Court session just ended was probably the Cleveland school
voucher case. Although voucher advocates sometimes overestimate the popular
support for voucher systems, a number of voucher plans had been on hold
awaiting the court's decision in the Cleveland case. Now they will be able
to move forward.

Some have complained that since most of the voucher money in Cleveland went
to religious schools, the decision authorized government aid to religion,
weakening the separation between church and state.

But the court's bottom-line principle was equal treatment - if you're going
to set up a voucher system you can't treat those who prefer to use it at a
religious school differently than those who don't - which is healthy.

As Prof. John Eastman of Chapman University Law School noted, Justice
Clarence Thomas' concurring opinion offered a reinterpretation of the
establishment-of-religion clause that could offer states more flexibility
in cooperating with religious institutions. Eastman thinks this opinion
will wield influence in years to come.

Beyond that decision it is difficult to see a theme to this court session,
and it included plenty of decisions worthy of criticism. One of the worst
was the Tahoe land-use decision: the court held that property owners
prevented by an oft-extended building moratorium from using their property
were not entitled to compensation because of a regulatory partial taking of
their property.

As Roger Pilon, constitutional scholar at the Cato Institute said, the
result was that "those owners who had already built, thereby contributing
to the pollution the government wanted to control, had their property
values increased. Those who hadn't built lost their entire investment,
having done nothing to worsen pollution. The situation cried out for
justice, but the court was oblivious."

The court did well on straight First Amendment cases, invalidating
overreaching Internet regulations justified as being "for the children." It
will be tested when the McCain-Feingold campaign "reform" bill comes before
it during the next session.

On drug issues the court was awful, continuing to carve out more drug- war
exceptions to the Bill of Rights. The decision to authorize blanket
drug-testing of students engaging in suspicious activities like joining the
chess club was beneath contempt. The decision to allow the eviction of
grandparents from public housing if their grandchildren smoked a joint
three blocks away without their knowledge showed a dedication to drug war
tactics that defies common sense.

Perhaps the court's next session will see a more principled adherence to
constitutional liberty.