What were the big decisions of the Supreme Court term of 2008-09 just ended?
I would list them as follows, in no particular order:
RICCI v. DeSTEFANO (the New Haven firefighters' affirmative-action case);
CUOMO v. CLEARING HOUSE (upholding state authority vis-a-vis banks against an argument that federal law preempts the field);
ASHCROFT v. IQBAL (limiting the supervisory liability of high government offiials for acts of racial and religious discrimination);
MELENDEZ-DIAZ v. MASS.(securing a defendant's right to cross-examination, or in constitutional terms "confrontation," against the lab techs behind an incriminating forensics report);
FCC v. FOX (reversing a Second Circuit decision in which that circuit had sought to rein in the FCC, re "fleeting expletives.")
From the point of view of this blog, the point of view of anarcho-capitalism, this is a mixed bag of opinions. RICCI and MELENDEZ-DIAZ were both wins for individuals litigating against arbitrary state authority, with the state (or its creature, a municipality) serving in the one case as an employer and in the other as a prosecutor. So those are two "wins."
ASHCROFT and FCC are equally clear "losses." In both cases, an individual or individuals "fought the law and the law won."
CUOMO involves the old federalist dispute between two levels of authoruty. This is the steamship case of John Marshall's day in its latest guise. I don't know how to score it, so I'll call that one a tie.
Accordingly, we can write the whole term down as a deadlock in the ongoing struggle between freedom and sovereignty.
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I don't think that it is valid to view Ricci as a win for individuals litigating against arbitrary state authority. For one thing, the state exercised its authority for a reason so, whether or not you agree with it, it was not arbitrary. But, more important, suppose that the state had not thrown out the test results, and minority applicants had sued and ultimately won at the Supreme Court. Then, even though we'd have the opposite result, you'd have to call it a victory for individuals litigating against state authority.
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