More Supreme Court Hackery

The Supreme Court, in a 6-3 decision, recently decided to decimate the First Amendment in order to give a big fat present to the terror fearmongers. The case in question was whether the government's "material support" law, which forbids Americans from giving money, "training," or "expert advice and assistance" to organizations that are deemed to be "terrorist organizations" by the federal government, is Constitutional. Stevens joined the Court's right-wingers in saying they were - Breyer dissented, joined by Ginsburg and Sotomayor. The case is Holder v. Humanitarian Law Project.

To his credit, Roberts' opinion does say that advocating for said groups was Constitutionally protected, but that the law doesn't forbid that. Even if we take him at his word, though, the decision is still odious. The main reason, of course, is that the decision to designate some group as a "terrorist group" has little to no check on it. The Law.com article I linked claims that the Tamil Tigers and the Kurdistan Workers' Party were designated as terrorist groups "by Madeleine Albright," who - it must be noted - was not elected by anyone. I don't know whether representatives of the Tigers or the KKP were allowed to challenge such a designation, but such an extralegal process doesn't seem like it has an appeals process. And keep in mind that the abuse of such a list is not far-fetched; the African National Congress (the party of Nelson Mandela and current ruling party in South Africa) was up until very recently on the list. Which would mean that, had the ANC not been removed from the list in 2008, the US men's soccer team could have been arrested for participating in the World Cup (which aids the South African government).

Absurd, right? But even if we trust the State Department to choose the right organizations to list as "terrorist groups," and even if we think providing aid to their violent activities is wrong, we still have a problem, and the problem is this - most terrorist groups aren't solely violent. Many, such as Hamas and Hezbollah, have significant humanitarian components that operate separately from their blow-shit-up components. The law, and the ruling upholding the law, hinges on the idea that aiding the legal activities of these organizations is also to aid their illegal, vile activities.

You'll recognize in here the same conservative argument about abortion funding that came up during the health care debate. Opponents of abortion criticized federal subsidies for health insurance on the grounds that giving a woman a subsidy for non-abortion-inclusive health coverage and allowing her to buy her own abortion coverage separately would be essentially the same as giving a direct subsidy for abortion coverage. The idea is that aid is fungible - you give money but you can't control where it goes. Aid to one part of an organization frees up money for use in another.

And here's where I call "hack" on the Court's conservatives (or at least three of them), because they ruled the exact opposite in the 1997 case Agostini v. Felton. Agostini allowed government employees to teach in religious schools as long as they were involved solely in secular instruction. (The opinion is here). Agostini is also generally read to approve funding for religious organizations that use the money for non-religious, secular purposes. And that's where the hackery comes in - according to Scalia, Thomas, and Kennedy, aid is not fungible when it is going to fund part of a religious organization, but it is fungible when it is going to fund part of a terrorist organization. And if they truly believe what they ruled in Agostini, they would have to allow funding and assistance to the humanitarian portions of a terrorist organization, because that aid isn't going toward illegal activity.

The only way to square that circle is to determine that "material support" isn't constitutionally protected speech or free association, and so government can put whatever restrictions it wants on it. But here, again, the conservatives have undermined themselves rather recently. The Citizens United decision, among other things, upheld the idea that monetary donations are protected under the First Amendment free speech clause, and on the winning side of that decision were Scalia, Thomas, and Kennedy (along with Roberts and Alito, who did not participate in Agostini and so escape the "hack" label for now).

So when Jeff Sessions rants about "judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country," it's fair to ask who he's really describing here.

One final Supreme Court note - the Court issued a decision in the Christian Legal Society v. Hastings case, where a student group ran afoul of a public university's non-discrimination policy and was thus denied funding. They themselves sued the university on the grounds that they were being discriminated against on the basis of a religion. An unsuprising 5-4 majority ruled that the group was not owed funding and recognition by the university (though clearly they could continue to exist as a group). I discussed this case briefly in a previous post and sided with the student group; it's a complex, difficult case, though, and I'm not too upset about the decision going one way or the other.