Chief Justice's Health Never Came Up In Confirmation Hearings

There is no record of any discussion of the 1993 seizure or of Roberts's health in general during his confirmation hearings.

Sen. Arlen Specter (R-Pa.), who chaired the hearings, told CNN on Monday night that senators were told about the previous episode but did not find it serious enough to ask Roberts about.

The Washington Post reports:

Chief Justice John G. Roberts Jr. was rushed to a hospital here Monday afternoon after suffering a seizure at his summer island home, a Supreme Court spokeswoman said.

Roberts, 52, fell on a dock after having a "benign idiopathic seizure," said Kathleen Landin Arberg, the court's public information officer. She said that Roberts has "fully recovered from the incident" but that he would remain at Penobscot Bay Medical Center here overnight for observation.

Arberg said that the chief justice, who has presided over the court for two terms, received minor scrapes from the fall but that a "thorough neurological evaluation . . . revealed no cause for concern."

She said he experienced a similar event in 1993 but had no recurrence until Monday.

Seizures are any sudden, abnormal electrical activity in the brain. While some are focused in one part of the brain, others can be generalized. Not all seizures involve convulsions. Arberg's description of a benign idiopathic seizure indicates an episode whose origins are unknown.

Newsweek reported in November 2005 that Roberts suffered a seizure in January 1993 while golfing. "It was stunning and out of the blue and inexplicable," Larry Robbins, a Justice Department colleague, told the magazine. Robbins said Roberts was not allowed to drive for several months after the seizure and took the bus to work. The magazine quoted a senior White House aide as describing the episode as an "isolated, idiosyncratic seizure."

There is no record of any discussion of the 1993 seizure or of Roberts's health in general during his confirmation hearings. Sen. Arlen Specter (R-Pa.), who chaired the hearings, told CNN on Monday night that senators were told about the previous episode but did not find it serious enough to ask Roberts about. Roberts has no known history of major illness.

Roberts, the youngest member of the Supreme Court, took office as chief justice in September 2005 after being nominated by President Bush to replace the late William H. Rehnquist.

Roberts's seizure occurred around 2 p.m., Arberg said, when he was stepping off a boat after doing errands near his home on Hupper Island, which is about halfway up the Maine coast.

Hupper Island is part of the village of Port Clyde, which is contained in the town of St. George, according to Town Manager John M. Falla. He said that the island is not connected to the town by bridge, and that Roberts was brought by private boat to the mainland and taken by ambulance to the hospital, about 20 miles away.

St. George Fire Chief Tim Polky told the Associated Press that Roberts was "conscious and alert when they put him in the rescue [vehicle] and took him to Penobscot Bay Medical Center."

The chief justice was admitted by an emergency room doctor and seen by Judd Jensen, a staff neurologist, said Chris Burke, the hospital's director of marketing and communications.

He said Roberts was "aware and alert" when he arrived at the community medical facility, which is nestled among trees on the edge of Rockport, a picturesque Maine village about 90 miles northeast of Portland. He declined to say what the chief justice's full neurological evaluation entailed.

Burke said some of Roberts's aides had visited the hospital more than a year ago, when the chief justice bought the nearby vacation home. "Folks came by and checked out the facilities. That's a normal precaution for anyone in his position," he said.

Burke said he thinks doctors consulted with Roberts's regular physicians in the Washington area during the chief justice's evaluation.

Roberts was resting in a regular patient room on Monday night and had some friends with him, Burke said.

"Most seizures last from 30 seconds to two minutes and do not cause lasting harm," according to background information posted online by the National Institute of Neurological Disorders and Stroke, part of the National Institutes of Health. "However, it is a medical emergency if seizures last longer than 5 minutes or if a person has many seizures and does not wake up between them."

While seizures can be the result of a brain disorder such as epilepsy, the institute notes that they can also be a consequence of fevers, head injuries or even medication side effects.

Roberts and his wife, Jane Sullivan Roberts, bought the Hupper Island house last summer from Steve Thomas, former host of the PBS home-improvement series "This Old House."

The Bangor Daily News reported last year that the house is about 225 feet from shore, with a right of way to the beach and a water view toward Port Clyde General Store on the mainland. The island has 20 to 30 homes and more than a mile of shoreline.

When Roberts was confirmed by the Senate on Sept. 29, 2005, by a vote of 78 to 22, he became the youngest chief justice in more than 200 years and the third-youngest ever to assume the office.

Since the court adjourned in late June, Roberts has taught at a law school summer program in Europe and attended an international judicial conference in Paris. He was back in Washington last week, and on Friday left work early to attend a party celebrating his daughter's seventh birthday. The Robertses have two young children.

Roberts was originally nominated to succeed Justice Sandra Day O'Connor, who announced in July 2005 that she was retiring. But upon Rehnquist's death, Bush decided to make Roberts his nominee for chief justice and later nominated Samuel A. Alito Jr. to replace O'Connor.

Chief Justice Roberts Is Hospitalized After Seizure

The NYTimes reports:

Chief Justice John G. Roberts Jr. was hospitalized on today after suffering a seizure at his summer home in Maine, the Supreme Court announced.

The episode, described as a “benign idiopathic seizure,” was similar to one he suffered 14 years ago, according to the court’s press release. Idiopathic means that the cause of the seizure remains unknown.

He had no lasting effects from the earlier incident and was “fully recovered” from the seizure he suffered about 2 p.m. today, the court said, adding that the chief justice had undergone “a thorough neurological evaluation, which revealed no cause for concern.”

He was to remain overnight “as a precaution” at Penobscot Bay Medical Center in Rockport.

The seizure caused a fall, in which he “experienced minor scrapes,” the court said.

Christopher Burke, a spokesman for Penobscot Bay Medical Center, told The Associated Press, “It’s my understanding he’s fully recovered.”

In an interview this evening, Dr. David J. Langer, the director of cerebrovascular neurosurgery at St. Luke’s-Roosevelt, Beth Israel and Long Island College Hospital, said that medical care after such a seizure should include “a good M.R.I., CAT scan and EEG. ” All these tests are available at the Penobscot Bay Medical Center, according to the hospital’s Web site.

“But the chances they’ll find anything and be able to do anything about it are pretty low,” said Dr. Langer, who is also an assistant professor at Albert Einstein Medical College.

“In the majority of seizures you see no anatomical cause,” he said. A cause could be a tumor, bleeding in the brain, a clogged blood vessel or an injury.

Dr. Langer said it could be difficult for doctors to decide whether the chief justice, who, at 52 is the youngest member of the court,, should start taking medication, which Dr. Langer said “have significant side effects.” Chief Justice Roberts appears otherwise healthy and is not known to have any chronic medical problems.

The chief justice’s home, which he bought last year, is on Hupper Island, off Port Clyde. The 400-acre island has only about two dozen houses, offering privacy to his family, which includes two young children. He was taken by boat to the mainland and from there by ambulance to the hospital.

Chief Justice Roberts was “conscious and alert” when he was put in the ambulance, said Tim Polky, the fire chief in the town of St. George, which includes Port Clyde.

He has spent an active month since the court’s summer recess began at the end of June, with a two-week trip to Europe that included teaching at a seminar in Austria and meeting in Paris with European judges in the company of several of his Supreme Court colleagues. Before leaving for Maine a few days ago, he was working in his chambers at the court.

A White House spokeswoman, Dana Perino, said President Bush had been told of the chief justice’s hospitalization during a meeting earlier in the day.

U.S. Supreme Court Votes Against Banner - Shows Divide on Speech in Schools

The New York Times reports:

The Alaska high school student who unfurled a 14-foot banner with the odd message “Bong Hits 4 Jesus” insisted that it was a banner about nothing, a prank designed to get him and his friends on television as the Olympic torch parade went through Juneau en route to the 2002 Winter Games in Salt Lake City.

The school’s principal insisted, to the contrary, that the banner advocated, or at least celebrated, illegal drug use, and that the student, Joseph Frederick, should be punished for displaying it. She suspended him for 10 days.

On Monday, by a narrow margin, the Supreme Court backed the principal in a decision that showed the court deeply split over what weight to give to free speech in public schools.

Six justices voted to overturn a federal appeals court’s ruling that left the principal, Deborah Morse, liable for damages for violating Mr. Frederick’s First Amendment rights.

Chief Justice John G. Roberts Jr. spoke, at least nominally, for five of the six. He said for the court that Ms. Morse’s reaction to the banner, which was displayed off school property but at a school-sponsored event, was a reasonable one that did not violate the Constitution.

While the banner might have been nothing but “gibberish,” the chief justice said, it was reasonable for the principal, who “had to decide to act — or not act — on the spot,” to decide both that it promoted illegal drug use and that “failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use.”

He added, “The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.”

Four other justices, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel A. Alito Jr., signed the chief justice’s opinion, although Justice Thomas took a much different approach. He said that Mr. Frederick had no First Amendment rights to violate.

“In light of the history of American public education,” Justice Thomas said, “it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.” The court’s precedents had become incoherent, he said, adding, “I am afraid that our jurisprudence now says that students have a right to speak in school except when they don’t.”

The sixth justice, Stephen G. Breyer, did not sign the chief justice’s opinion, but wrote separately to say that the First Amendment issue was sufficiently cloudy that the court should have avoided deciding it. Instead, he said, the court should have ruled in the principal’s favor on the alternative ground that she was entitled to immunity from the student’s lawsuit.

Under the court’s doctrine of “qualified immunity,” government officials may not be sued for damages unless they have violated “clearly established” rights “of which a reasonable person would have known.”

There were additional shades of opinion within the chief justice’s majority. Justice Alito, joined by Justice Kennedy, wrote separately to emphasize what they said was the narrowness of the court’s holding. They said the decision should be understood as limited to speech advocating drug use, and noted that the court had not endorsed the much broader argument, put forward by the Bush administration, that school officials could censor speech that interfered with a school’s “educational mission.”

The breadth of that argument had alarmed religious conservatives, on the ground that school officials would get a license to enforce political correctness. Justice Alito, who had expressed a similar concern as an appeals court judge, said that the “educational mission” argument “strikes at the very heart of the First Amendment” by allowing school officials to “suppress speech on political and social issues based on disagreement with the viewpoint expressed.”

Writing for the four dissenters, Justice John Paul Stevens said that even limited to drugs, the majority opinion distorted the First Amendment by “inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs” in a way that someone might perceive as containing a “latent pro-drug message.”

Justice Stevens said that “carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.”

Noting that alcohol also posed a danger to teenagers, Justice Stevens wondered whether “the court would support punishing Frederick for flying a ‘Wine Sips 4 Jesus’ banner,” which he said might be seen as pro-religion as well as pro-alcohol.

The dissenters, who also included Justices David H. Souter, Ruth Bader Ginsburg and Breyer, agreed with the majority that the principal should not be held personally liable for monetary damages. The case was Morse v. Frederick, No. 06-278.

High Court Holds A '60s Revival

Warren era comes to life in cases on student signs and standing to sue

For the ABAJournal.com, David G. Savage writes:

A pair of unusual first amendment cases gives the U.S. Supreme Court under Chief Justice John G. Roberts Jr. a chance to reconsider doctrines that were set in the late 1960s, under Chief Justice Earl Warren.

The court this term will take up a test of the free speech rights of high school students and will decide whether taxpayers have a right to challenge President Bush’s faith-based initiative as a violation of the establishment clause.

The cases recall some that were argued during the Warren era, which famously expanded individual rights. When students showed their disapproval of the Vietnam War by wearing black armbands to high school, the court overturned their suspensions and said students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

And when some taxpayers sued because federal education aid was used to subsidize religious schools, the Warren court made an exception to the rule that taxpayers do not have standing to challenge government policies. In Flast v. Cohen, 392 U.S. 83 (1968), the court said taxpayers may sue to enforce the First Amendment ban on spending tax money to promote religion.

But in more recent times, those doctrines have been narrowed. And in this term, the court will decide whether to narrow them even further.

Perhaps the more colorful case before the court is Morse v. Frederick, No. 06-278. Students outside a Juneau, Alaska, high school unfurled a 14-foot banner along the street after they were dismissed from class to watch the torch for the 2002 Winter Olympics pass by.

As the torch and local TV cameras approached, senior Joseph Frederick and a few friends hoisted the banner, which read, “Bong Hits 4 Jesus.” Principal Deborah Morse spotted it, grabbed it from the students and crumpled it.

When Frederick invoked the group’s right to freedom of speech, the principal said the school’s policy prohibited the display of “offensive” messages, including ones that “promote the use of illegal drugs.” She suspended the senior for 10 days.

Frederick appealed the suspension to the superintendent and the school board, but lost. He then sued in federal court, alleging his free speech rights were violated, but he lost there too.

Last March, however, he won before the San Francisco-based 9th U.S. Circuit Court of Appeals, which held that school officials may not “punish and censor” expressions by students simply because their message conflicts with the school’s policy.

“What schools are entitled to do ... is suppress speech that disrupts the good order necessary to conduct their educational function,” wrote Judge Andrew Kleinfeld, one of the most conservative judges on the 9th Circuit.

He reviewed the trilogy of student free speech cases decided by the Supreme Court. Tinker in 1969 said the free speech rights of students would prevail except when they would cause a “substantial disruption of or material interference with school activities.”

In 1986, however, the court upheld the suspension of a high school student who gave a nominating speech in the auditorium that contained a thinly veiled sexual allusion. School authorities need not tolerate “plainly offensive” speech from students during a “school-sponsored educational program,” the court said. Bethel School District v. Frazer, 478 U.S. 675. Two years later, the court said school officials were free to censor a student newspaper that was produced in a journalism class and therefore was “part of the school curriculum.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260.


NOT ‘PLAINLY OFFENSIVE’

Kleinfeld said the student’s banner was protected free speech. “The phrase ‘Bong Hits 4 Jesus’ may be funny, stupid or insulting, depending on one’s point of view, but it is not ‘plainly offensive’ in the way sexual innuendo is,” he wrote. And since it was displayed outside the school, along the street, it certainly cannot be described as part of the curriculum, he added.

The 9th Circuit not only sided with Frederick on the free speech claim but also rejected the principal’s claim of qualified immunity. “This is no case of ignorance,” the 9th Circuit said. “The law was clear.”

Former U.S. Solicitor General Kenneth Starr, now dean of the Pepperdine University law school, petitioned on behalf of the school board and principal, arguing the law was anything but clear. He noted that school boards across the nation have adopted policies that forbid students from wearing clothes at school events that promote the use of alcohol, tobacco or illegal drugs.

By contrast, the 9th Circuit’s decision says school authorities “must tolerate pro-drug messages in the face of threats of draconian civil damages lawsuits. This is wildly wrong,” Starr said.

The two sides differ on how to regard the torch parade that sparked the incident. Juneau attorney Douglas Mertz, a lawyer for Frederick, calls it an “off campus” event, since the student was standing on the street, not on the school grounds. But Starr referred to the same incident as a “school-sponsored” event, akin to a football game, since school authorities were in control.

In the second case, Hein v. Freedom from Religion Foundation, No. 06-157, the court will focus on standing of a different sort. Arguments are slated for Feb. 28.

In his first term, Roberts made clear he would strictly enforce the limits on standing. Last year, taxpayers in Ohio challenged the state’s subsidies for out-of-state manufacturers to build new plants in the Buckeye State. They won a ruling in the U.S. Court of Appeals saying this subsidy discriminated against interstate commerce and violated the commerce clause.

But Roberts spoke for the court and dismissed the suit. “We have an obligation to assure ourselves of litigants’ standing under Article III,” he wrote in Cuno v. DaimlerChrysler Corp., 126 S. Ct. 2286.

Otherwise, it would “transform federal courts into forums for taxpayers’ generalized grievances.” Ohio taxpayers had not suffered a specific injury that gave them grounds to sue, he said.


FAITH-BASED FUNDING

While rejecting standing for the Ohio taxpayers in DaimlerChrysler, Roberts noted that the Flast decision had created a “narrow exception” for taxpayers who complain about spending to promote religion.

Shortly after taking office, President Bush created a Center for Faith-Based and Community Initiatives in the White House that encouraged religious groups to participate in government-funded social-service programs. Bush’s order stressed tax money would not be used for “inherently religious activities,” such as worship or religious teaching.

Nonetheless, the Madison, Wis.-based Freedom from Religion Foundation sued, contending the White House was using tax money for conferences and meetings that promoted “the funding of faith-based organizations.”

The administration’s lawyers moved to block the suit on standing grounds. They said federal officials were merely assuring that church groups and other religious charities had the same opportunity as others to participate in public programs. Certainly, the president and other officials can speak favorably about religion without violating the establishment clause or giving taxpayers grounds for suing, they said.

A federal judge in Wisconsin dismissed the suit, but the Chicago-based 7th U.S. Circuit Court of Appeals revived it in a 2-1 decision. “Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch,” said Judge Richard Posner.

After the full appeals court upheld that decision in a 7-4 vote, U.S. Solicitor General Paul Clement urged the justices to rule that taxpayers do not have standing to challenge “the executive’s use of general appropriations.”

“This is a relatively narrow question, but it’s quite important,” says Barry W. Lynn, executive director of Americans United for Separation of Church and State. “We believe that no tax money should be spent to advance religion. It’s essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion.”

But Kevin J. Hasson, president of the Becket Fund for Religious Liberty in Washington, D.C., says he hopes the court will use the case to end the “jurisprudence of hurt feelings.”

“Paying taxes should not give every malcontent with a gripe against religion a license to sue the government,” Hasson says. “This case could finally close a loophole in the law through which radical secularists have been driving entire convoys of trucks.”

The "Bong Hits 4 Jesus" Student Speech Case: With Kenneth Starr Seeking High Court Review Of The Ninth Circuit Decision, Is Someone Blowing Smoke?

Findlaw columnist Julie Hilden writes:

Last Monday, September 11, former Independent Counsel Kenneth Starr - now a lawyer at Kirkland & Ellis -- asked the Supreme Court to review a March 10 decision by the U.S. Court of Appeals for the Ninth Circuit, in the case of Frederick v. Morse. The decision upheld a public high school student's First Amendment right to display a banner off campus. Starr represents the school district on a pro bono basis.

In a two-part series of columns, I'll explain why I believe the Ninth Circuit was right to rule as it did. I'll also put the decision in the context of two other controversial decisions the Ninth Circuit has issued this year regarding public school students' speech.

The Facts of the Frederick Case

The Frederick case grew out of an incident in which Juneau, Alaska high school senior Joseph Frederick unfurled a banner reading "Bong Hits 4 Jesus" on a public sidewalk. He did so during a privately-sponsored rally where townspeople watched the Olympic torch pass by. Students were released from school to attend the rally. The high school's "pep band" and cheerleaders performed there, but the court found that teacher supervision of other students at the rally was "minimal or nonexistent."

Frederick and his friends made sure they unfurled their banner when TV cameras were passing by - but the school's Principal, Deborah Morse, who was also attending the rally, went up to Frederick, grabbed the banner, crumpled it up, and suspended him for ten days.

Frederick later sued, invoking the federal civil rights statute that allows plaintiffs to seek money damages for government infringements of their constitutional rights, including First Amendment rights.

In my view, the principal's conduct was appalling. She didn't just tell Frederick to put his sign away, or that it was inappropriate, nor did she warn him that he could be suspended. Rather, she actually went right up to him on a public street and destroyed his banner.

This is the kind of thing that we believe cannot happen in this country. Is it suddenly acceptable simply because the victim is eighteen? What happened to school officials' duty to try to convince students - first, by setting the right example -- to solve their differences with reason, not violence? Ironically, if Frederick had ripped up another student's poster on school grounds, he surely would have been suspended for doing so.

In short, the example this principal is setting is a very ugly one. No wonder the Ninth Circuit held - on the separate question of the principal's claim to immunity under the federal civil rights statute - that "it would be clear to a reasonable [principal] that [her] conduct was unlawful in the situation [she] confronted." (As a result, the principal herself may face liability for damages; she is a co-defendant in the case, along with the school board.)

How could this kind of behavior strike Starr, or Kirkland & Ellis, as so worthy of protecting, that it was worth taking this case on for the school district as a pro bono project?

The Legal Standards for Public School Students' Speech

There are three Supreme Court cases setting forth standards for public school students' speech -- which were considered by the Ninth Circuit - but only one is relevant here.

One of the cases, Hazelwood School Dist. v. Kuhlmeier - addressing school-sponsored speech -- doesn't apply because neither Frederick's banner (nor the rally itself) was school-sponsored in the sense that, for instance, a school-funded student newspaper is.

A second case, Bethel School Dist. No. 3 v. Fraser - which was relied on by the district court, but distinguished by the Ninth Circuit -- doesn't apply because it addresses only vulgar, lewd, obscene, and otherwise "plainly offensive" speech, and because the Ninth Circuit has interpreted that to mean, in essence, obscenity or, at least, speech involving four-letter words or similarly profane language.

Finally, there is Tinker v. Des Moines Independent Community School Dist.. Its rule is simple: Student speech -- other than speech that falls under the precedents noted above - can only be punished or otherwise regulated if it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Moreover, to support the punishment or regulation, school districts must cite "evidence that [the punishment] is necessary to avoid material or substantial interference with schoolwork or discipline."

Applying the Legal Standard in the Frederick Case

The Juneau School District had an exceptionally weak case under Tinker.

In support of its case that Frederick's banner was disruptive, the District claimed that the banner would be read by many at the rally as "advocating or condoning illegal drug use."

Similarly, School Superintendent Peggy Cowan recently told CNN that this case is appropriate for Supreme Court review because it raises "an important question about how the First Amendment applies to pro-drug messages in an educational setting."

But even if this was, to some extent, a pro-drug message, that wasn't all it was. The district itself acknowledged that Frederick could have been not just responding to, but parodying the school's anti-drug message (and parody is strongly protected by the First Amendment). Moreover the "for Jesus" part shouldn't be left out of the analysis; juxtaposing "Bong Hits," the informal "4" for "for," and "Jesus" may also send a message that religion shouldn't be taken so seriously, and a message that Jesus was more laid-back, and would have been more sympathetic to the counterculture, than some authoritarians would admit.

I'm not, of course, claiming that this message was well-thought out. To the contrary, it reads like a spur-of-the-moment lark, a prank. But I do think that it meant something different and more complicated, than just, say, a "Smoke Pot" banner would have. (Frederick himself said the banner was intended to be meaningless and funny, and he just wanted to get it on television. However, as many First Amendment cases have shown, words often have an impact beyond their intended meaning.)

The District also claimed that if the principal had done nothing, the district would have been seen by many as giving its imprimatur to Frederick's pro-drug message. But that claim seems ridiculous: If the District was as avid about spreading its anti-drug message as it claims that it was, no one would believe that it had suddenly changed its policy by merely deciding not to rip up Frederick's poster. If anything, onlookers might believe the District tolerated Frederick's poster out of a healthy respect for the First Amendment, or that the school district simply wasn't worried about its own message being undermined by a poorly-thought-out sophomoric sign.

Why the Ninth Circuit Is Right, and Starr Is Wrong, In This Case

Because this case is such a clear First Amendment violation, and because the Ninth Circuit rightly sided with the student, there's no good reason here for Supreme Court review.

In explaining why review was sought, Eric Hagen, an attorney from Starr's office who also worked on the Supreme Court petition, told a reporter, "It makes it a little harder when teachers and principals in their daily duties might be subject to a damages lawsuit and be held personally liable." But it's only harder for teachers and principals to perform their daily duties when the lines for liability are unclear.

As noted above, there are few First Amendment violations clearer than a government employee's crumpling up someone's banner at a privately-sponsored rally on a public street. That's censorship with a capital "C." If the Supreme Court does want to make the line between permissible disciplinary action and impermissible First Amendment violation clearer, perhaps it should wait for a subtler, closer case.

Ironically, I think most schoolchildren, if taught a bit about the First Amendment, could easily identify this as an obvious violation. Their teachers and principals ought at least to be able to do the same.

Justices Defend Handling of Florida Election Case

CNN reports:

U.S. Supreme Court justices Anthony Kennedy and Clarence Thomas told a congressional panel Thursday that it was the court's responsibility to decide last year's presidential election dispute in Florida.

The court's 5-4 ruling in Bush v. Gore December 12 halted a Florida recount sought by Democrat Al Gore and in effect handed the presidency to Republican George W. Bush.

The justices testified at a House Appropriations subcommittee hearing on the court's budget.

Rep. Jose E. Serrano (D-New York) asked the justices about the controversial ruling, saying the court "went and broke my heart by getting involved in a political decision."

Kennedy said the court is the only branch of government that must give reasons for its actions.

"Justice Thomas and I and our colleagues will be judged not by what we say after the fact in order to embellish our opinions or detract from what some of our collegues say, we will be judged by what we put in our appellate reports. That's the dynamic of the law," Kennedy said.

He said the court's power and prestige are built on trust.

"My colleagues and I want to be the most trusted people in America," Kennedy said. "How do you instill that trust? Over time you build up a deposit, a reservoir, a storehouse of trust. When we make a difficult decision in many areas -- and this was not the most difficult decision the court has made -- for many of us, you draw down on that capital of trust."

Kennedy pointed out that the justices did not file the lawsuit that brought the dispute to court.

"It involved a constitutional issue of the gravest importance decided 4-3 by a state court on a federal issue that it was our responsibility to take the case," Kennedy said. "Sometimes it is easy, so it seems, to enhance your prestige by not exercising your responsibility, but that's not been the tradition of our court."

He said that seven justices agreed that allowing manual recounts only in selected Florida counties violated the Constitution's equal protection clause, but they disagreed on the remedy. The decision blocked a statewide hand count of ballots because the tally could not have been finished in time for Florida to meet the deadline for selecting electors to the Electoral College.

Kennedy said disagreements among the justices are expected in the difficult questions the court often hears.

"In the European Court of Justice, there are no dissents and the European judges say, 'How can you do this, how can you have a system where you criticize each other? Isn't this bad for the institution?' We say no, it's good for the institution. We want to make it clear by our dynamic and our discipline and our tradition and by our dissenting opinions and by reasons that the issues we decide are very difficult ones."

Thomas said he would have preferred not to have gotten involved in the case, and that if he had wanted to be in politics, he knew where to go.

"If there was a way, and I only speak for myself, to have avoided getting involved in that very difficult decision and simultaneously living up to my oath, I would have done it," Thomas said.

Thomas and Kennedy also discussed plans to update the court's computer systems and replace the electrical, air conditioning and other systems in the Supreme Court building, which has not been remodeled in 65 years.