Fanning the Flames: The Freedom Project Blog


Supreme Court Review: 2008-2009 Docket

By Andrew Miller

The McCormick Freedom Museum hosted an intellectually stimulating round table discussion on the Supreme Court’s 2008-2009 term on July 30th at the Loyola University Law School. Gretchen Helfrich, formerly of NPR's Odyssey program, moderated the program, which featured two erudite lawyers and professors considered to be "giants" in their fields: Geoffrey Stone, former Dean of Law and Provost of the University of Chicago Law School, who now teaches First Amendment laws, and Oxford-educated Richard Epstein, who specializes in property rights. The two experts delved into specifics related to the most important Supreme Court cases of the last docket of 2008-2009, as well as their larger social significance. The subjects discussed included some of the most controversial issues impacting American citizens: whether affirmative action can be used in hiring or job promotions, whether freedom of speech laws allow cruel movies of dogfights to be distributed, and whether evidence can be used if it is obtained through "police misconduct."

One of the most interesting cases discussed was Ricci v. DeStefano, considered a landmark ruling by some. In a conservative vs. liberal arm-wrestle, the Supreme Court ruled 5-4 in favor of a group of New Haven white firefighters, striking down the 2nd Circuit’s affirmation of the city’s refusal to promote them. The court determined that the white firefighters, whose test scores were thrown out because of reported racial disparity, were being oppressed. According to Epstein, this ruling was "over the top." He added that the "equal protection clause of the 14th Amendment needs discretion" and lamented the fact that attackers only had to show incongruence and disparity, not intent of disparity. Stone pointed out that it's usually the liberals who make the case of disparate impact in support of affirmative action; according to him, conservatives turned the tables in this case, using arguments that they normally abhor. A footnote on this case is that then Judge Sonia Sotomayor was one of the federal appeals court judges who sided with the city in its desire to throw out the test scores to avoid lawsuits by minority firefighters.

The next case under discussion, one which has not yet been heard, US v. Stevens, will focus on whether videos of dog fights are protected by freedom of speech. The positions to be argued are whether these violent videos are simply entertainment, or whether they are inciting violence. The panelists agreed that the ruling will most likely be 5-4 with Justice Anthony Kennedy being the swing voter.

In Herring v. United States, the Supreme Court ruled again in a divisive split-5-4, with Kennedy as the swing voter-in favor of police, even if evidence is obtained through police misconduct. This is quite significant, since it overturns the "exclusionary rule" that forbids this type of evidence to be used against the defendant. The 4th Amendment, which decries "unlawful searches and seizures," was on the scales in this decision. The conservative wing of the Supreme Court Justices Samuel Alito, John Roberts, Clarence Thomas and Antonin Scalia, with Kennedy following them-stated that their majority ruling did not pertain to "deliberate, reckless and grossly negligent conduct," which, according to them, was when the "exclusionary rule" could be used. They considered the case at hand, which dealt with an alleged outstanding warrant (in fact, there was none) being used against a man whose car was searched. In the search, the police found methamphetamine and a gun. The Supreme Court allowed the evidence to be used, even though there had been police misconduct. This is a very significant ruling which will provide police with significantly more leeway.

On a broader scale, the two law experts stated that the four conservatives mentioned above are in constant battle with the four liberals-Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer and David Souter (now replaced by Sotomayor). Kennedy is in his own sphere. It was observed that one can't help but wonder at the colossal power that Kennedy has over the Supreme Court-and therefore over the country.

As the senator from Arizona and 2008 Republican Presidential Candidate, John McCain, once said, "Elections have consequences." He was absolutely right considering the presidential election and re-election of George W. Bush. He was given the auspicious opportunity to appoint two more Justices to the Supreme Court and did---two solid conservatives, Roberts and Alito. On the flip side, President Barack Obama has been able to nominate Judge Sonia Sotomayor due to the retirement of Judge David Souter. The next election, in 2012, will be critical. Landmark and controversial cases, like Roe v. Wade (1973), are at stake. If a Republican wins the presidency, then she or he will be able to nominate and eventually appoint one to several justices to an aging Court. . For now, though, Kennedy is the crucial swing voter in such divisive issues. For the most part, he has sided with the conservatives on those issues. If, however, Obama or some other Democrat wins reelection, then the Supreme Court will mostly likely stay in a partisan deadlock, at least until more conservative Justices are gone, since Ginsburg and Stevens are most likely the next ones to retire.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at