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American Enterprise Institute for Public Policy Research AEI Articles Click here for an index of Articles. This article appeared in the February 1995 issue of Commentary. What to Do about the First AmendmentBy Robert H. Bork -------------------------------------------------------------------------------- The text of the First Amendment is quite simple: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." These are not words that would lead the uninitiated...

Legal briefs are due today in an important case the Supreme Court will consider this fall. In the latest iteration of a 16-year legal fight, the Court's decision in Scheidler vs. NOW will have enormous consequences. The federal Racketeer Influenced and Corrupt Organizations Act prohibits engaging in a "pattern of racketeering activity" which it defines to include extortion. The National Organization for Women filed a RICO lawsuit in 1986, claiming that a nationwide conspiracy aimed to shut down the abortion industry through such "extortion" and "racketeering" activity. When this case first reached the Supreme Court, the issue was whether the...

Nothing rattles the American Left so completely as the specter of a conservative, Bush-appointed Supreme Court. And no wonder. Over the last half-century, sympathetic judges have given the Left “progressive” policy outcomes that the voting booth wouldn’t deliver. It is this liberal judicial legacy—everything from affirmative action to partial-birth abortion—that the Left fears a Bush-influenced bench will sweep away. Haunted by the doomsday scenario of a Supreme Court dominated by Antonin Scalia and Clarence Thomas, the Democrats and their allies will fight with every means they can muster to block the appointment of conservative justices. If their ferocious and successful...

Liberals and conservatives should be outraged at last week's U.S. Supreme Court ruling in favor of an Oklahoma school district's mandatory drug testing policy for students involved in extracurricular activities. That 5-to-4 decision, written by Justice Clarence Thomas, was an assault on parental rights. Since drugs were involved, the justices felt free to indulge in judicial activism -- something conservatives such as Thomas are supposed to abhor. There is more anti-drug rhetoric than law in what Thomas wrote. While hearing arguments on the case, Justice Anthony Kennedy scolded ACLU attorney Graham Boyd, who represented students and parents who objected to...

With the end of the Supreme Court's term, it is not clear that the country's long struggle against the pernicious practice of one-person rule has been nearly as successful as our folklore might suggest. Even as we commemorate our rejection of one supreme leader in 1776, lawyers and politicians are studying the latest social and legal decisions mandated by another: Associate Justice Sandra Day O'Connor. Because of her position as the perennial "swing vote" on a divided Supreme Court, O'Connor continues to dictate massive changes for the nation based on her own highly evolving views and priorities. This term alone,...

PRINCETON, N.J. Earlier this year Antonin Scalia decided to share some aspects of his worldview with the public. His inspiration seems to have been the death penalty: recent debates with his colleagues on the Supreme Court and his general reflections on the legitimacy of the state taking to itself the power to kill a citizen. Justice Scalia spoke on these matters at the University of Chicago Divinity School in January, beginning with the ritual disclaimer that "my views on the subject have nothing to do with how I vote in capital cases"; his remarks appeared in the May issue of...

ORT LAUDERDALE, Fla., July 2 — Only a week after the Supreme Court held that juries and not judges must make the factual findings to support death sentences, a trial court here ruled today that Florida's capital sentencing statute, which relegates juries to an advisory role, is constitutional.While the Supreme Court's decision, in Ring v. Arizona, directly affected five states where juries played no role at all in the death penalty decision, it left open the constitutionality of the procedures in four other states, including Florida. Some 800 prisoners are on death row in the nine states altogether, and...

Justice David Souter broke from the Supreme Court majority yesterday, arguing that his colleagues' decision to allow school vouchers will undermine basic American rights and breed social unrest. Souter, of East Weare, cast one of four votes opposing yesterday's decision, which concerned vouchers in Cleveland. In a 34-page opinion quoting Jefferson, Madison and 50 years of precedent, Souter argued against compromising the constitutional separation between church and state, even for the sake of helping kids in one of the nation's worst public school systems. Conflict is certain, Souter argued, if more public money helps students pay for religious schools. Protestant...

WASHINGTON - In June 1990, US Supreme Court Justice John Paul Stevens sat down and wrote a dissenting opinion in a death-penalty case. At issue was whether the defendant had a right to have his sentence determined by a jury rather than by a judge. The majority held that capital defendants had no such right. Yet Justice Stevens wrote: "I am convinced that the Sixth Amendment requires the opposite conclusion." Last week, in a case from Arizona, six other members of the high court embraced the exact position taken by Stevens 12 years ago. As the justices ended their term...

<p>WASHINGTON, D.C. -- Judicial election campaigns in Minnesota and around the country will feel a lot more like other political contests, under a ruling Thursday by the U.S. Supreme Court in a Minnesota case.</p> <p>The 5-4 decision struck down a Minnesota rule limiting what judicial candidates may tell voters.</p>

All five conservative justices vote in favor of a free-speech claimant. All four liberals vote in favor of the government. A seemingly surprising lineup, especially when the issue isn't a traditional left-right question such as campaign finance or religious speech. But this 5-4 split in Thursday's judicial-campaign case (Republican Party v. White) tells us much about how far conservatives and liberals have moved since the 1960s and 1970s. In this case, and in other debates, conservatives have become populist libertarians, who trust the people and free speech — and liberals have become supporters of elite management, who trust the...

ASHINGTON, June 27 — Declaring that the First Amendment protects the right of judicial candidates to express their views, the Supreme Court today struck down a Minnesota rule that prohibited candidates in judicial elections from taking stands on disputed legal or political issues.Because the Minnesota rule is typical of rules governing judicial elections in other states, the 5-to-4 decision had an immediately unsettling effect, casting doubt on rules limiting judicial campaign speech in a majority of the states. Most states elect judges to at least some courts. State judges and leaders of the organized bar have expressed alarm at...

ASHINGTON, June 27 — The Supreme Court, concluding that Cleveland's voucher plan was "a program of true private choice," today upheld the use of public money for religious school tuition in a decisive 5-to-4 ruling that the majority called a logical outgrowth of recent decisions and the dissenters described as a fundamental break with the past.The most important ruling on religion and the schools in the 40 years since the court declared organized prayer in the public schools to be unconstitutional, the decision, issued on the final day of the court's 2001-2002 term, will not end the passionate debate...

Here is a portion of Justice Thomas' opinion in teh voucher case that will have liberals blowing a gasket: While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: “Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities.” Black Education: Myths and Tragedies...

<p>WASHINGTON -- The Supreme Court today struck down limits on what some judicial candidates may tell voters, a landmark free speech ruling that could heat up court campaigns around the country.</p> <p>Nearly 40 states elect some judges, and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts.</p>

FOR IMMEDIATE RELEASE June 27, 2002 LANDMARK CALLS COURT'S VOUCHER DECISION "THE NEXT CRITICAL PHASE IN A NEW ERA FOR AMERICA'S SCHOOLS" Supreme Court Decision in Cleveland School Choice Case Caps 12-year Battle for Competition and Accountability in Education (HERNDON, VA)...Mark R. Levin, president of Landmark Legal Foundation, the first legal group to join the battle for school choice more than a dozen years ago, heralded today's U.S. Supreme Court decision upholding the Cleveland, OH, school voucher program as the "next critical phase in the new era of competition and accountability in America's schools." "Vouchers give hope to families who...

WASHINGTON- The Supreme Court on Thursday struck down limits on what some judicial candidates may tell voters, a landmark free speech ruling that could heat up court campaigns around the country. Nearly 40 states elect some judges, and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts. The Supreme Court, in throwing out strict limits in Minnesota on a 5-4 vote, said the rules impose an unconstitutional gag order. Minnesota is one of nine states that had banned would-be judges from announcing views on "disputed legal or political issues." Most...

Supreme Court backs school vouchers By ANNE GEARAN Associated Press WASHINGTON -- The Constitution allows public money to underwrite tuition at religious schools as long as parents have a choice among a range of religious and secular schools, the Supreme Court ruled today. The 5-4 ruling led by the court's conservative majority further erodes the figurative wall separating church and state and clears a constitutional cloud from school vouchers, an education idea dear to political conservatives and championed by President Bush. Opponents call vouchers a fraud that will only siphon tax money from struggling public schools. The court endorsed a...

Victory for School Choice WEB RELEASE: June 27, 2002 CONTACT: (202) 955-1300 John Kramer Lisa Andaloro [School Choice] See Related Information Washington, D.C.-Today, the U.S. Supreme Court issued its most important educational decision since Brown v. Board of Education, upholding the constitutionality of Cleveland's school choice program. The Institute for Justice and its clients issued the following statements: Clint Bolick "This was the Super Bowl for school choice and the kids won," said Clint Bolick, vice president for the Institute for Justice. "This decision makes good on the promise made nearly 50 years ago in Brown v. Board of Education,"...

(06-27) 07:30 PDT (AP) -- ^Supreme Court gives go-ahead for school vouchers, lowers wall between church and state= WASHINGTON (AP) -- The Constitution allows public money to underwrite tuition at religious schools as long as parents have a choice among a range of religious and secular schools, the Supreme Court ruled Thursday. The 5-4 ruling led by the court's conservative majority lowers the figurative wall separating church and state and clears a constitutional cloud from school vouchers, a divisive education idea dear to political conservatives and championed by President Bush. Opponents call vouchers a fraud meant to siphon tax money...