Justice Samuel Alito

by Jeremy Leaming

The U.S. Supreme Court’s conservative majority is seemingly preparing to provide a potentially fatal blow to affirmative action policy. After the high court announced earlier today that it would consider Fisher v. Texas, a white college student’s challenge to the University of Texas’ affirmative action policy, The Huffington Post’s Mike Sacks wrote, that affirmative action was heading back to the high court “and this time its prospects for survival are poorer than ever.”

As Sacks notes, in 2003 the Supreme Court upheld by a 5-4 vote in Grutter v. Bollinger that the University of Michigan law school’s affirmative action program was constitutional. The law school’s policy, in part, was based on a longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like, African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in a meaningful manner.”

The lower federal court in the Grutter case found Michigan’s use of race as a factor in admissions was unconstitutional. The federal appeals court, however, overruled that opinion.

Retired Supreme Court Justice Sandra Day O’Connor wrote the majority opinion in Grutter. She noted that part of the reason Michigan used race as a factor in higher education admissions policies was to create a richer educational experience. She said the majority would defer to the school’s “educational mission.” O’Connor noted that the briefs supporting the school “substantiated” the “educational benefits” of its affirmative action policy. Those friend-of-the-court briefs, O’Connor wrote included “expert studies and reports entered into evidence at trial,” and “numerous studies show[ing] that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”

O’Connor, moreover, said the law school had not employed a rigid quota system in trying to achieve its goal of bringing underrepresented minorities into the fold. “The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race,” she wrote.

In an 8-1 opinion issued this morning, the high court led by Chief Justice John Roberts found that the content of Westboro's speech "plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.'"

For decades Fred Phelps and his tiny Kansas-based church, made up largely of his relatives, have traveled the country initially targeting the funerals of persons who had died of AIDS with signs reading "God Hates Fags." Eventually after antiviral drugs helped, in this country, to lessen the number of AIDS-related deaths, Phelps and his family turned to protesting funerals of soldiers, and with two American wars, the opportunities to amplify their vitriol again increased. According to its website "godhatesfags.com," Phelps and his family picket funerals of soldiers as part of a campaign attacking America for allegedly being tolerant of gays. Beyond posting invective on its web site, the small group travels the country to hoist signs at soldiers' funerals reading "God Hates the USA," and "Semper fi fags." When Phelps and his family brought their act to a Maryland funeral of Marine Lance Corporal Matthew Snyder, his father, Albert lodged a lawsuit against the group and won a jury verdict of $2.9 million in compensatory damages and $8 million in punitive damages. The jury verdict was overturned by an appeals court, citing First Amendment protection for Phelps.

Writing for the majority in Snyder v. Phelps, Roberts said the content of Westboro's messages "may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy - are matters of public import," and ultimately protected by the First Amendment. "Such speech," Roberts wrote, "cannot be restricted simply because it is upsetting or arouses contempt."

Justice Samuel Alito was the only member to dissent. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote.

Alito continued that Phelps' band has a freedom to "write and distribute books, articles, and other texts," and disseminate its commentary in other public ways, such as posting its commentary on its web site.

"It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate," Alito said.

Alito also questioned the majority's conclusion that the Phelps outfit was engaging in speech of public concern. He wrote that evidence showed that the group went "far beyond matters of public concern," and "specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern."

Tom Goldstein, founder of SCOTUSblog provides some initial reaction to the opinion, noting:

The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the "time, place, and manner" of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals' decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.