As most students learn in American history class, even during middle school, the American government was designed so that each of the three branches would have some control over the other two. That way, the runaway totalitarianism that made life under the British monarchy so outrageous would not characterize life in the United States. One of the earliest Supreme Court decisions, Marbury v. Madison, established the precedent that the courts could review acts of legislation passed by the legislative branch and authorized by the executive branch and, in instances where the courts found those acts to violate the constitution, to suspend or halt their enforcement.
Several recent decisions in the 2011 term of the Supreme Court indicate that there is still a conservative majority willing to roll back against activist tendencies that had been the province of such liberal Supreme Courts as those presided over by Earl Warren, for example. One of these cases is Brown, Governor of California v. Entertainment Merchants Association. This case featured a challenge by video game manufacturers against a law passed by the state of California restricting the rental or sale of violent video games to minors. While that law might make a lot of sense to parents, the manufacturers felt that the law violated the First Amendment – specifically the right to freedom of speech. Both federal district court and the U.S. Court of Appeals for the Ninth Circuit found in favor of the manufacturers, so the state appealed to the Supreme Court. Cases such as Joseph Burstyn, Inc. v. Wilson had already established a precedent that the government could not restrict expression solely on the basis of the content or subject matter, except for words intended to foment violence or endanger safety. Similarly, the Supreme Court found that this California law was inconsistent with the principles of the First Amendment (Brown v. Entertainment Merchants Association).
Arizona Free Enterprise Club’s FreedomClub PAC v. Bennett also was a case involving the protection of free speech, but of a differet type. The state of Arizona passed a law creating a public fund to provide money to candidates for public office. If a candidate chose to accept public funding, he would receive money equivalent to what privately funded candidates could raise. Several political action committees objected strenuously, saying that the government was essentially that the government was drowning out the political commentary of private donors by providing matching funds to the competition. While federal district court agreed with the committees, the Ninth Circuit did not, finding that the effect of public funds going to candidates doing less well in private fundraising would only have a “minimal” effect on political races. However, the Supreme Court disagreed, finding that the voices of private donors and interest groups were indeed harmed in their power of expression by this provision (Arizona Free Enterprise Club’s FreedomClub PAC v. Bennett). This is a commentary on the Supreme Court’s view of freedom of speech, which has much to do with ensuring that what is said is still audible in the public sphere – not just ensuring a particular content’s right to exist and be expressed.
Leal Garcia v. Texas involved the case of a Mexican national who had been sentenced to death in an American courtroom for the kidnapping, rape and murder of a sixteen-year-old girl. He asked for a stay of execution, on the basis that the American government representatives never notified him that assistance was available from the Mexican consulate, on the basis of a ruling that had come down from the International Court of Justice. The essential thrust of the motion was that the Supreme Court should stay the execution until Congress passed legislation guaranteeing the right to consular assistance, in accordance with the Vienna Convention of 1963. However, the Supreme Court, in a 5-4 vote (Justices Breyer, Ginsburg, Sotomayor and Kagan dissenting) found it improper to wait on a law to pass before announcing a pending judgment (Leal Garcia v. Texas).
In all three of these cases, the Supreme Court appears to shun government activism to alter a pre-existing status quo. In other words, private candidates with large war chests get to keep the advantage that fundraising gave them, and existing legislation will hold priority over possibly pending legislation, even when that pending law is more lenient or more forgiving.
ARIZONA FREE ENTERPRISE CLUB’S FREEDOMCLUB PAC v.BENNETT ( Nos. 10-238
10-239 ) 611 F. 3d 510. (2011).
BROWN v. ENTERTAINMENT MERCHANTS ASSN. ( No. 08-1448 )
556 F. 3d 950. (2011).
HUMBERTO LEAL GARCIA, v. TEXAS (11–5001 (11A1)). (2011).