The Supreme Court opinion in the Westboro Baptist Church case (the military funeral disrupters) illustrates why the First Amendment has become increasingly irrelevant to self-government. Of course free speech is more important than ever, but the Court's majority opinion shows the divide between that fundamental constitutional principle and what has become mere First Amendment "freedom of expression." As Justice Alito argues in his solo dissent, "Neither classic 'fighting words' nor defamatory statements are immunized when they occur in a public space, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder [the fallen Marine] any differently." Of course, "funerals are unique events at which special protection against emotional assaults is in order." The Justice is on his way to becoming the Justice for common decency and the friend of dogs--see his dissent in the animal cruelty case.
The Court's appalling conclusion about free speech also reminds us of an important political issue for defenders of constitutional government. First, Justice Alito is on the Court because conservative Republicans protested President Bush's nomination of an unqualified crony. Second, note Justice Breyer's concurring opinion, which underlines the limits to the Court's free speech defense. Breyer voted correctly against University of Michigan quotas in the undergraduate case, and he was the swing vote in the Texas state house Ten Commandments display case (he voted the wrong way against the Ten Commandments' posting in a court house). For one, Clinton nominated Breyer because of the relative ease of confirmation. Even the perception of political opposition can shape the Court and the lower courts. Hence the need for robust, incisive argument against nominees who undermine constitutional self-government.