This paper is best read from start to finish. But for those who want to skip around, here's an index.
Like any academic paper, this one offers a bibliography. (Never trust a writer who won't cite verifiable sources of information.) The numbers in parentheses (0) will lead you to the appropriate bibliographical entry.
When you see the name of a court case hyperlinked, that takes you to the first spot in this paper where the case is described.
Anyway, here's the paper.
A Hurtful Penumbra
The issue of youth rights comes up frequently in Supreme Court
rulings. It is seldom discussed as such, and it is seldom addressed by
justices directly, but each justice is guided by — and gives guidance to
other courts based on — his or her view of youth rights. Sadly, most of
the justices seem hostile toward youth having any rights, and even those
who support youth are inconsistent in that support.
Sandra Day O'ConnorWhen the Supreme Court based its Roe v. Wade ruling on the right to privacy, some wondered how abortion was connected to the issue of privacy. The tie between privacy and abortion was clear, however, in two of the laws contested in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey.
One of these two laws required a married woman getting an abortion to first sign a statement indicating she had informed her husband of her decision. O'Connor voted to strike down this law, declaring it imposed an undue burden on the woman's right to an abortion because it gave her husband "an unconstitutional veto" over his wife's decision.
The other law was even more burdensome and more clear in giving veto power to a private individual. This law barred anyone younger than 18 from obtaining a legal, safe abortion unless she first got permission from her parent or a judge. This law was more burdensome for a few reasons. Not only did it require permission instead of mere notification, but it required the clinic to verify this permission. The woman's signed statement, her word, was no longer good enough. Incredibly, O'Connor voted to uphold this law.
Legal scholars correctly observed, "O'Connor's inconsistent treatment of adult women and minors in Casey is jarring" (5). The spousal notification law allowed a woman to escape notifying her husband if she stated that her husband was not the one who impregnated her, or that she was raped, or that informing her husband might lead to her being bodily injured. The parental consent law offered no such exceptions. Some might try to argue that allowing "judicial bypass" is equivalent to writing in such exceptions, but this is untrue. Finding your way to a court and groveling before a judge is fundamentally more burdensome than simply signing a statement. Many judges refuse to hear such pleas. Those judges who do hear them often humiliate the young women, intentionally violate the laws' skimpy privacy protections, give condemning moral lectures, and/or refuse every request for an abortion (10). Even judges who may be good in their hearts have reason to fear they'll lose their livelihoods if they approve even one abortion (25).
In striking down the spousal notification law, O'Connor cited these reasons:
- "The right of privacy includes the right of the individual, married or single, to be free from unwarranted government intrusion into matters that so fundamentally affect a person as the decision whether to bear or beget a child."
- "The Constitution protects all individuals, male or female, married or unmarried, from unjustified state interference, even when the interference is employed for the supposed benefit of a member of the individual's family."
- "The women most affected by a spousal notice requirement are those who most reasonably fear the consequences of notifying their husbands."
Every one of these arguments could be applied just as logically to the parental consent law, as could O'Connor's constitutional interpretation. She drew her ruling against the spousal notification law from the protections in the 14th Amendment, but then chose not to extend those same protections to women younger than 18.
I've read the 14th Amendment, and it does not use age to exclude people from its protections. In fact, a strict constructionist interpretation of Section 1 of this Amendment would prohibit such double-standards as O'Connor was now encouraging. The section reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis mine]
One could argue, of course, that the framers of this Amendment never intended to prohibit age-discrimination. Section 2 almost encourages such discrimination.
But one would have to admit these framers also had no intention of eradicating sexism; Section 2 encourages sexism as strongly as it encourages ageism. Nevertheless, today's justices, O'Connor included, are able to see beyond the intent of the framers, to see the moral principle embodied in Section 1 and to carry that principle out to its logical conclusion regarding women, even if the framers themselves couldn't see that logic.
Where that road of moral logic stretches out to youth, however, O'Connor becomes blind. What, other than blindness, could explain O'Connor's apparent conclusion that the constitutional right to privacy guarantees every woman the right to have an abortion, but not the right to keep that abortion private?
O'Connor's blindness rips into the fragile dignity of every young woman in America. It also endangers lives. Many young women in states with these insulting and restrictive laws resort to illegal abortions (10). Some die very slow and painful deaths. It always amazes me when I hear certain feminists talk about the danger that we might "return to the days of back alley abortions." Those days never went away. Two differences, of course, exist between today's illegal abortions and those of yesterday: 1) today's victims usually can't afford to pay a doctor to risk his license, so instead they rely on amateur friends with coat hangers or knitting needles; and 2) most feminists and most reporters don't give a damn about victims this young, so it's easier for the rest of us to ignore.
When young women in these states obtain legal abortions, these abortions are usually performed later in the pregnancy than they are in states without such age-limits (10). Abortions performed in the second trimester are more dangerous for woman than abortions performed during the first trimester. This, in fact, was the reason Roe v. Wade allowed states to restrict abortion after the first trimester (18). Even worse, into the second trimester, the fetus takes on the recognizable characteristics of a living being (23). At this point, the anti-abortion "baby killing" rhetoric goes from being an excuse to punish women for having sex to being a reality. Anyone who cared about unborn babies would struggle to prevent abortions from being delayed beyond the first trimester. Conservatives who push for an age-restriction on abortion, and liberals who allow it as a compromise, are showing a shameful disregard for two young lives.
Unfortunately, O'Connor's disregard for the interests of the young is not limited to abortion cases. A very different example is found in this year's ruling in Jenifer Troxel v. Tommie Granville. This case involved a Washington law allowing anyone to petition a state court for visitation rights with a child and allowing a judge to grant visitation that was found to be in the child's best interest. A widowed mother in this case had allowed, but limited, her children's visitation with their paternal grandparents. The grandparents challenged her limitation legally, and a judge ordered more visitation time.
O'Connor voted to strike down this law. She declared that parents have a constitutional right to dominate every aspect of their children's lives, writing, "It cannot now be doubted the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." The Constitution doesn't say parents have such a right, so O'Connor instead draws on bad precedence ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.") and applies this "unenumerated" parental right to the 14th Amendment. If O'Connor had bothered to read the First Amendment, she might have seen a clearly defined right of all people "peaceably to assemble", exactly the right these girls and their grandparents were asking the legal system to recognize. O'Connor decries the attempt of "the State to inject itself into the private realm of the family," but she must have understood that, if the daughters visited their grandparents without legally enforced visitation rights, the mother could call the police, and the State would then inject itself, acting as the mother's agent in violating her daughters' freedom of association. Justice O'Connor chose to ignore the spelled-out rights of children in favor of imagined rights of parents.
O'Connor maintains that judges should not have such an opportunity to overrule the decision of a parent, and she bases this on the assumption that "natural bonds of affection lead [fit] parents to act in the best interests of their children." This is not a safe assumption, even when the parents have not been ruled unfit. There are many parents who have never been ruled unfit who, nevertheless, are willing, at times, to put their own egos or convenience or emotions ahead of their children's best interests. As Justice Stevens wrote in his dissent, "Even a fit parent is capable of treating a child like a mere possession." Judges, of course, would have their own short-comings, and it could have been argued that Washington's challenged law risked incompetent judges putting vulnerable children in the hands of dangerous people. But O'Connor wasted no time considering the interests of children. She even wrote in her opinion that "the interest of parents in the care, custody, and control of their children" was the only "liberty interest at issue in this case." As legal scholars have said of O'Connor in general, "Justice O'Connor does not focus on the minor. ...her gaze is firmly directed elsewhere, to an entity she sometimes fails to name but frequently defends – the family" (5). "Family" here is used as it is typically used by conservative politicians: as a code word for "patriarchy".
While O'Connor sees nothing wrong with forcing a teenager to grovel before judges for the right to control her own body, O'Connor is appalled at the idea of a middle-ager groveling before a judge for the right to control a teenager.
Before moving on to the other justices, let's take one more glimpse into the mind of Sandra Day O'Connor.
1998's Alida Star Gebser and Alida Jean McCullough v. Lago Vista Independence School District and 1999's Aurelia Davis v. Monroe County Board of Education both dealt with a school district being sued because of sexual harassment against a student. In Davis, a 5th-grader made some sort of "persistent sexual advances" toward a classmate. In Gebser, a teacher made persistent sexual advances toward an 8th-grader and ultimately pressured her to have sexual intercourse with him.
In Davis, O'Connor found the school district liable. They'd had a legal obligation to control children who might harass, and they had failed to do that. In Gebser, where the school had failed to control a teacher, O'Connor voted the other way. Was there any significant legal difference between these two cases that might justify a different outcome? The other justices didn't think so. All eight voted the same way in both cases. And because the others were split four-to-four, O'Connor alone imposed this double-standard on our society, demanding more accountability for the actions of children than for the actions of adults.
She offered an excuse. Writing the majority opinion in both cases, she claimed to find a difference: in Davis, at least one adult knew about the harassment and did nothing to stop it. It is also true in Gebser, however, that at least one adult, the teacher himself, knew about the harassment (and the statutory rape) and did nothing to stop it. Justice Stevens pointed this out to O'Connor in his dissent:
"If petitioner had been the victim of sexually harassing conduct by other students during those classes, surely the teacher would have had ample authority to take corrective measures. The fact that he did not prevent his own harassment of petitioner is the consequence of his lack of will, not his lack of authority."
In all of these cases, O'Connor made it clear she is no friend of youth.
John Paul Stevens
The Court's last standing liberal
In his Troxel dissension, Stevens agreed with O'Connor to a point. "The right of a parent to maintain a relationship with his or her child is among the interests ... protected by the Fourteenth Amendment." But he disagreed with her about the extent of that protection. "We have never held that the parent's liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm."
Stevens pointed out to O'Connor, "Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at minimum a third individual, whose interests are implicated in every case to which the statute applies – the child."
Stevens goes on to write:
"While this Court has not yet had occasion to elucidate the nature of a child's liberty interest in preserving established familial or family-like bonds, it seems to me likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation. ... [Precedent would] require that this Court reject any suggestion that when it comes to parental rights, children are so much chattel. The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the State from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child."
Before I could break out my party hats, however, Stevens went on to qualify these remarks. "This is not, of course, to suggest that a child's liberty interest in maintaining contact with a particular individual is to be treated invariably as on par with that child's parents' contrary interests."
But despite his hesitation to put youth on par with adults, he was here the justice most supportive of youth rights. He often is. And that is sad because his support is not as strong as it should be. In the Casey decision, for example, he rightly voted against the spousal notification law, but he supported parental consent. He technically dissented from O'Connor's opinion supporting parental consent, but he wrote the following in his separate opinion: "Although I agree that a parental consent requirement (with the appropriate bypass) is constitutional, I do not join in Part V-D the joint opinion because its approval of Pennsylvania's informed parental consent requirement is based on the reasons given in Part V-B, with which I disagree." Was this just a legal excuse to vote against age-discrimination? No. In 1997, the Court again faced the issue of age-restrictions on abortion access in Martin D. Lambert v. Susan Wicklund. Here, the law in question was, admittedly, less burdensome, requiring only that the physician notify the woman's parents 48 hours before performing the abortion, and offering the same nearly-worthless judicial bypass. But it was still more burdensome than the spousal notification law Stevens helped strike down earlier, and yes, Stevens voted to uphold this one.
Unlike Stevens, Justice Breyer was appointed by a Democrat (if you consider Bill Clinton a Democrat). So is Breyer more liberal than the Ford-appointed Stevens? Will he stand up for oppressed and hated youth when Stevens stands down? Absolutely not.
Breyer can't be blamed for the Casey decision. It happened before he joined the bench. But in Lambert v. Wicklund, he joined Stevens in supporting the parental notification law, as did all the justices currently on the Supreme Court. Are these notification laws really such a bad thing? Ask Spring Adams. Ms. Adams was 13 when her father raped and impregnated her. Like many pedophiles who get in such a position (22), her father saw this as an opportunity to raise another victim. Ms. Adams bravely arranged for an abortion anyway, hoping to spare another child from this horror. Two days before the scheduled abortion, her father was informed of her plans and, following his pro-life convictions, shot her to death with an assault rifle (10). Adams got off easier, I suppose, than girls like Becky Bell who stab themselves with coat hangers and then go through a week or two of pain before they finally die. But whenever these age-restrictions on abortion take another girl's life, these justices have that blood on their hands.
In Gebser and Davis, Breyer voted with Stevens in protecting young victims regardless of the harasser's age, but he wasn't quite as strong as Stevens. In Gebser, he felt the need to support adding language demanding that victimized students, in order to be awarded damages, prove they'd taken advantage of any grievance procedures the school offered. In other cases, he has refrained from making such a demand on victims who are older.
In the Troxel child visitation case, he shrunk further away from Stevens. He voted with O'Connor, supporting her indifference to the interests of children.
As one might expect from an appointee of Republican George H. W. Bush, Justice Thomas tends to be conservative. In Casey, he supported the parental consent law — but he also supported the spousal notification law. So, while he voted to hurt more women, he was less hypocritical and less ageist than O'Connor or Stevens. In fact, if one really believes life begins at conception, one could claim Thomas was fighting ageist violence in the womb. If I were charitable, I'd think he has good, egalitarian feelings misdirected in this case by bad information about the beginning of life. Unfortunately, there is reason to reserve such charity.
In Troxel, Thomas wrote a separate opinion from O'Connor, denouncing the Washington legislators for their attempt to recognize the interests of children. "The State of Washington lacks even a legitimate governmental interest – to say nothing of a compelling one – in second-guessing a fit parent's decision regarding visitation with third parties."
In both Gebser and Davis, he voted for the school districts that had failed to stop sexual harassment. He doesn't discriminate according to the ages of perpetrators, and he also doesn't discriminate according to the ages of victims. In 1998's Burlington Industries, Inc. v. Kimberly B. Ellerth, the victim was an adult woman subjected to unwanted comments by a male superior. In this case, none of the man's superiors knew this was going on. You'll recall that in Gebser, O'Connor used the school administration's ignorance as an excuse to let the school off the hook. In this case, however, where the victim was older, O'Connor decided that an employer's ignorance of the harassment was no excuse, and voted to hold the company liable. But Thomas proved as consistent on harassment as he is on abortion: betraying women of all ages.
Is that better than betraying only young women? Maybe it is. If the Court as a whole followed Thomas in abandoning all women, those who fight against harassment would look elsewhere for protection – and might appeal to needed allies by being inclusive and demanding protection for women and girls of all ages. But as long as the court protects only older women, it is likely most feminists will remain apathetic, and young women and girls will have nowhere to look for hope. This, of course, does not make Thomas a great human being, and from a human rights perspective, it might make him the worst justice I've discussed so far. But focusing on ageism, Thomas's rulings on sexual harassment make him better than hypocrites like O'Connor and other judges I'll discuss later.
In another case, Thomas was surprisingly noble in his stand against age-discrimination. In the 1999 case United States v. Playboy Entertainment Group, Inc., the Supreme Court was asked to review 505 of the Telecommunications Act of 1996. Congress wrote 505 to address the issue of "signal bleed". Some people who had not subscribed to pornographic cable channels were, nevertheless, getting some transmission from these channels: distorted images and clear sounds. Some parents worried their children would see this and develop twisted ideas about sex (but clear ideas about how it sounds). In 505, Congress ordered cable companies to either block completely their pornographic programming from non-subscribers or else confine such programming to late night hours. The Playboy Channel sued, claiming that complete blocking of signal bleed was impossible and that restrictions on the hours at which they could show their programs violated the First Amendment clause guaranteeing the right to see "Naked Teenage Sluts" 24 hours a day.
Justice Breyer, writing for himself, Rehnquist, O'Connor, and Scalia, supported the law. In describing the problem this law was designed to address, Breyer seemed concerned, not that children might see harmful pornography, but that they might avoid the complete domination of their parents. Praising 505, he writes, "Unless parents explicitly consent, it inhibits the transmission of adult cable channels to children whose parents may be unaware of what they are watching, whose parents cannot easily supervise television viewing habits." This statement, I must confess, scares me. What is Breyer suggesting? The only way parents really could be "aware of what [their children] are watching" would be to watch it with them. The idea of a lone child sneaking a peek at pornography doesn't bother me anywhere near as much as the idea of a parent sitting down with his children to watch porn. Some things should not be shared between parent and child, and watching porn is at the top of that list. Nevertheless, Breyer goes on to write, "I doubt that the public, though it may consider the viewing habits of adults a matter of personal choice, would ‘yawn' when the exposure in question concerns young children [and] the absence of parental consent." Again he suggests that the presence of parental consent would somehow make more acceptable the watching of porn by young children.
Justice Kennedy, writing for himself, Stevens, Souter, and Ginsburg, supported Playboy's interpretation of the First Amendment. Nevertheless, they, too, affirmed the importance of the State supporting parental domination. While voting to strike down 505, they praised as a proper alternative 504, which allowed parents to request that their specific household's TV be blocked from getting signal bleed. "Targeted blocking," Kennedy reported, "enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners." This statement contradicts itself since "supporting parental authority" in this case would necessarily affect the interests of "willing listeners" who live with their parents. Once again, we see Supreme Court justices acting as if the young are something other than people.
Justice Thomas, writing a separate opinion, cast the tie-breaking vote. He voted to strike down 505. However, Thomas differed from the other Playboy-supporters by suggesting that for concerned parents and other community members, the proper alternative to 505 was, not 504, but obscenity laws. The practical difference: unlike the "targeted blocking" of 504, obscenity laws treat "willing listeners" of all ages the same. This point was not lost on Breyer who, in writing his opinion for the minority, attacked Thomas.
"[It is not] a satisfactory answer to say, as does JUSTICE THOMAS, that the Government remains free to prosecute under the obscenity laws. The obscenity exception [to the First Amendment] permits censorship of communication even among adults. ... To rely primarily upon law that bans speech for adults is to overlook the special need to protect children."
Breyer: 'Get your hands off my porn, Clarence'
Nowhere in the text of the First Amendment do I find any language about a special need to "protect" children. Breyer's point seemed to be: do whatever you want to young people, but don't take away my porn!
A reasonable person cannot, I feel, single-out children for censorship on the idea that children must live up to a higher moral standard than adults. Some would target children on the grounds that children are impressionable. But psychological studies, as well as personal observation, confirm that adults are likewise vulnerable to persuasion (16).
I used to work in a bookstore that sold several porn magazines. Barely Legal, a magazine published by Larry Flint (who sexually abused his own daughter (17)), shows young-looking models with facial expressions of fear or confusion. Photos of these naked girls are surrounded by text describing acts of child molestation. Middle-aged men buy this magazine, and it urges them, Rape your daughter. It's fun. Everyone does it. Would this push a normal man to rape? Probably not. But a normal man is not the type who would pay six dollars to take this home and masturbate to it. A father attracted to this sort of porn might well be pushed over the edge by a magazine that uses sex to sell cruelty the way advertisers use sex to sell beer. Even non-parents could be pulled to do something wrong. A person who reads such porn might one day sit on a jury and make a decision based on the promoted myth that children like being raped or that they somehow deserve it. Such porn might even drive one to show insensitivity to an 8th-grader raped by her teacher, as Justice Thomas did in his Gebser decision. When pornography is dangerous, it should be banned first and foremost for those "willing listeners" who, if they act on it, will do the most harm: voters, potential jurors, judges, cops, and certainly parents. Children, having so little power in our society, are the least likely to do harm. I have no fear of walking home from school one day and being gang-raped by 5-year-olds. Adults, on the other hand, can be scary.
At my bookstore, I was expected to ring up Barely Legal and similar magazines without raising an eyebrow, but I was expected to card any teenager trying to buy a Penthouse. This is the kind of silliness endorsed by eight members of our current Supreme Court.
Thomas alone supported the notion that if we are to keep certain entertainment from children because we find it dangerous, we must be willing to give it up ourselves.
Justice Thomas may be sleazy, dishonest, and dangerously unqualified for his position — but he knows what he's talking about when it comes to porn.
In Gebser, Davis, and Burlington, Scalia voted with Thomas to support employers who ignore sexual harassment, regardless of the perpetrator's age or the victim's age. In Casey, Scalia joined Thomas in supporting the parental consent law, but also supporting the spousal notification law.
In U.S. v. Playboy, Scalia and Thomas parted company, with Scalia voting to uphold 505. But like Thomas, he stood out by at least making a nod toward equality. Writing his own opinion in defense of 505, Scalia pointed out, "It is not only children who can be protected from occasional uninvited exposure to what appellee calls ‘adult-oriented programming'; we can all be." He goes on to agree with Thomas's idea that it would be okay to use a ban applying to "willing listeners" of all ages, though he follows this to an opposite conclusion about 505. "Since the Government is entirely free to block these transmissions, it may certainly take the less drastic step of dictating how, and during what times, they may occur."
So like Thomas, Scalia is quick to restrict the freedoms of Americans, but is sometimes willing to accept these restrictions for himself and his peers, rather than singling-out young people for every restriction.
Scalia differed from Thomas sharply, however, in Troxel. He refused to vote against the child visitation law. His reasoning, unfortunately, was not based on concern for children's rights as was Stevens's. In fact, he agreed with O'Connor's assessment of parental domination as an unenumerated right. However, he refused to enforce such a right on the grounds of strict constructionism:
In my view, a right of parents to direct the upbringing of their children is among the ... "other (rights) retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." ... [However,] the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.
Suddenly, I'm a big fan of strict constructionists. But before we get too excited about Scalia and his sometimes partner in egalitarianism Thomas, let's look at one more case. 1995's Vernonia School District v. Wayne Acton involved a school that was forcing all students participating in sports to submit to random urine tests for marijuana and other drugs. Naturally, this was challenged as a violation of the Fourth Amendment's protection against unreasonable searches. Even O'Connor had to side with the students on this one, writing, "intrusive, blanket searches of schoolchildren, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware," and pointing out, "the individualized suspicion requirement has a legal pedigree as old as the Fourth Amendment itself, and it may not be easily cast aside in the name of policy concerns."
Scalia was another story. This time, he abandoned strict interpretation of the Fourth Amendment in favor of shaky conclusions stretched from bad precedence. "A search unsupported by probable cause can be constitutional, we have said, ‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable'."
So what "special needs" did Scalia find beyond the normal need for law enforcement? "The substantial need ... to maintain order in the schools."
I see little difference, and even O'Connor saw the parallel, writing, "I realize that a suspicion-based scheme, even where reasonably effective in controlling in-school drug use, may not be as effective as a mass, suspicionless testing regime. In one sense, that is obviously true – just at it is obviously true that suspicion-based law enforcement is not as effective as mass, suspicionless enforcement might be." And O'Connor is no youth advocate, as mentioned earlier. Even in this dissent, she agrees with Scalia's view that, "the Fourth Amendment is more lenient with respect to school searches," – another piece of ageism not supported in the text of the Constitution.
Scalia strays even further from strict constructionism as he writes, "The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as ‘legitimate'." Appointing himself spokesman for society, he goes on to declare that privacy rights of youth are not legitimate.
Was there ageism in this ruling, or did this simply reflect Scalia's tough-on-crime attitude? Scalia himself answered that question more than once. "Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster." He went on to quote, not the constitution, but more bad precedence. "[A] proper educational environment requires ... rules against conduct that would be perfectly permissible if undertaken by an adult."
Scalia: your spokesman
Scalia ends by reassuring readers that courts must not take this ruling as a go-ahead to trample over the rights of older people. "We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken ... under a public school system..."
Scalia was not alone in his desire to single-out youth for unreasonable searches. His opinion was joined by Thomas and Breyer among others to be named shortly.
Ruth Bader Ginsburg
Ginsburg, like Breyer, was appointed by Clinton. And like Breyer, she's more conservative than some of the Republican appointees when it comes to youth.
In Vernonia v. Acton, she voted with Scalia and Breyer in upholding drug tests for students suspected of nothing. She did, to her credit, write a separate opinion for the purpose of minimizing her damage. She stated that, while schools were free to violate the privacy of students who volunteered to play sports, this did not necessarily allow doing the same to all students. That question, she wrote, was best left for another day.
In Troxel, she joined Breyer in dismissing the interests of children. In Lambert, she joined Breyer in supporting parental notification laws. But in U.S. v. Playboy, she differed from Breyer, supporting the targeted censorship of 504 over the targeted censorship of 505.
Though nominated by Bush, Justice Souter has gained a reputation as a liberal. To some extent, he seems to have earned that. In Vernonia v. Acton, he stood with Stevens and O'Connor against drug testing students. In all three of the sexual harassment cases mentioned here, Souter voted on the side of the victims, young or old, though he also wrote the Gebser opinion requiring young victims to take advantage of any school grievance procedures. In Burlington, he made no such demand on older victims, finding for the woman who admitted she had not taken advantage of her employer's grievance procedures.
His support for youth has faltered more than once.
In Casey, he joined O'Connor in voting down the spousal notification law while upholding the parental consent law.
In Troxel, he wrote a concurring opinion, going even further than O'Connor in dismissing the rights of youth. "The strength of a parent's interest in controlling a child's associates is as obvious as the influence of personal associates on the development of the child's social and moral character." While O'Connor supports the "right" of parents to control their child's whereabouts, Souter supports their "right" to control their child's "social and moral character", in effect to control their child's soul.
Kennedy, a Reagan appointee, is even worse than the Democratic appointees when it comes to youth.
Writing the Burlington opinion, he admitted, "During her tenure at Burlington, Ellerth [the victim] did not inform anyone in authority about Slowik's [the harasser's] conduct, despite knowing Burlington had a policy against sexual harassment. In fact, she chose not to inform her immediate supervisor (not Slowik) because ‘it would be his duty as my supervisor to report any incidents of sexual harassment.'" In other words, Ms. Ellerth kept quiet about the harassment, giving the company little chance to punish her harasser. This stands in contrast to Davis, where adults in authority knew about the harassment and chose to do nothing, and where Kennedy nevertheless refused to find the school district liable. This time, Kennedy supported the victim, concluding, "Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. ...Burlington is still subject to vicarious liability for Slowik's activity."
Kennedy's double-standard appeared as well in Casey, where he voted with O'Connor to remove all obstacles to a wife getting an abortion, while maintaining greater obstacles for teenagers. And in Vernonia v. Acton, he supported drug-testing the grade school students.
To his credit, though, Kennedy's ruling in Troxel was almost as progressive as Scalia's. Kennedy wrote a separate opinion, the main purpose of which seemed to be to frustrate any reader trying to figure out Kennedy's position. But I believe the gist of his opinion was that O'Connor went slightly too far in dismissing the interests of youth.
All in all, when it comes to the rights of youth, Kennedy seems to be the worst of the nine justices. He's certainly the worst writer.
In Troxel, Chief Justice Rehnquist voted with O'Connor. In Vernonia v. Acton, he voted to allow drug-testing without suspicion of wrong-doing. In the sexual harassment cases mentioned here, he voted against young victims, but in favor of the older victim. The best that can be said for him is that in Casey, where he voted to uphold parental consent, he also voted to uphold spousal notification.
Adding It Up
The best friend youth have on the Bench is clearly Stevens. He's made some bad calls on abortion, but so did the other eight justices. By default, he's the most progressive. After Stevens, the next best justices for youth (a distant second and third) are Scalia and Thomas.
The worst justice would be Kennedy, followed quickly by Rehnquist, Breyer, Ginsburg, and O'Connor.
The good news is that there may be some turnover soon. Every election year, pundits predict nine or ten justices will step down in the next four years, and this time they sound like they mean it.
The justice most likely to leave the Bench is Ginsburg. She has cancer (2), which is sad news for her, but good news for every American who has the misfortune to be young. O'Connor, who's now well past social security retirement age, has also been treated for cancer (2). Others speculated to leave soon include Rehnquist, who many believe would have retired already if not for the fear of letting Democrat Bill Clinton pick his replacement, and Breyer, who's reported as "looking wan and weary of late" (14).
But there's bad news, too: no one expects Kennedy to leave any time soon.
Worse, Stevens is speculated to leave soon. He's been treated for cancer, he's had heart surgery, and he is the oldest judge on the Bench (2). But as recently as last year, he was reported to look "at the top of his game — twinkly-eyed, bow-tied and churning out feisty opinions" (14), so there's still plenty of reason to hope he can stick it out until 2005. We need him to stick it out that long because until then, we won't have a president who'd be likely to appoint a replacement who would be anything like Stevens.
George W. Bush, Jr.
- "Previously, juvenile offenders spent large parts of their day loitering or sleeping... when juveniles arrive at our ["boot camp"] intake facility today, they are issued bright orange uniforms and their heads are shaved. They get up early, exercise regularly, and help maintain the facility. They don't speak unless they are spoken to. We teach them they are accountable for their actions. We created strict alternative schools for students who caused problems in regular classes."
- —George W. Bush (quoted at www.issues2000.org)
- "Some people think it's inappropriate to draw a moral line. Not me. For our children to have the lives we want for them, they must say yes to responsibility, yes to family, yes to honesty and work. What can be done? We can give schools and principals more authority to discipline children. We must encourage states to reform their juvenile justice laws. We must say to our children, "We love you, but discipline and love go hand in hand, and there will be bad consequences for bad behavior."
- — George W. Bush (in his candidacy announcement speech)
When the Supreme Court heard a case about student-led prayer at Texas school football games, Governor George W. Bush asked the court to allow such activity (15). The Court said no, with Stevens writing for the majority, "School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders." When asked by reporters for a comment, Bush simply said, "I support the constitutionally guaranteed right of all students to express their faith freely and participate in voluntary student-led prayer."
This is one of the few times I've ever heard of a modern politician talk about respecting young people's rights. It sounded so good! But does Bush really believe young people should enjoy rights like freedom of speech and of religion, or did he just say that to be less blatant in pandering to religious right members of his base who want to impose their religious views on captive students? The answer, unfortunately, would seem to be the latter.
In his current campaign for president, Bush shows little desire to acknowledge rights of youth but much desire to help the religious right impose its views on the young.
One of his campaign promises, listed on his official campaign website (www.georgewbush.com), is to increase funding for "abstinence education". This was a program started by Bill Clinton whereby school teachers, acting as agents of President Clinton, would lecture teenagers about their sexual morality (3, 13). Clinton learned long ago the way to satisfy moralist voters was, not by leading a moral life himself, but by wagging his finger at scapegoats for their supposed lack of morality. After Clinton took heat for bombing a pharmaceutical plant in Sudan, he made speeches about our country's need to "teach our children to settle their differences through words and not weapons" (19). To deflect criticism of his one-time pot-smoking, Clinton joined with fellow pot-head Newt Gingrich and committed the government to spend millions on TV ads lecturing teenagers about drugs. And while he was sexing an intern the age of his daughter and waiting to get caught, he laid groundwork for more deflection by pushing "abstinence education". Now Bush vows to increase spending on this. In a further appeal to the religious right, Bush also vows to give some of this money to "faith-based groups" to preach abstinence at youth.
At his acceptance speech to the Republican National Convention this year, Bush acknowledged that "bigotry disfigures the heart." Four sentences later, Bush displayed his own disfigured heart by calling for age-restrictions on abortion in the form of parental notification (6). In fact, Bush passed such a restriction in Texas (25).
In the same speech, he called for schools, "elevating character and abstinence ... to urgent goals." I think it would be better if schools had education as their top goal, but Bush has his own ideas. In his "positive" campaign ads running now, Bush emphasizes the need for "discipline" in public schools. On his website, he vows to, "enact a Teacher Protection Act to shield teachers, principals, and school board members from meritless lawsuits arising from their efforts to maintain discipline."
From what I've seen and experienced, people like Bush are the reason our schools are doing such a poor job now. The day I dropped out of high school, I had seven classes and four F's. It wasn't because I lacked intellectual curiosity. After I dropped out, I spent most of my time in libraries and bookstores, where I met other intellectuals who were likewise avoiding college for fear it would be like high school. We were fed up with teachers and administrators who cared more about gum-chewing and tardiness (and their own power-trips) than they did about illiteracy, ignorance, or the atrophy of students' brain cells. I recall sitting in classrooms reading library books, and often teachers yelled at me, gave me detention, and physically ripped books out of my hand because they were offended that I would try to learn something while sitting in their class. Bush seems to promise even more of this, viewing schools, not as a place to serve students and educate them, but as a place to scold students, lecture them, and beat them (psychologically of even physically) into submission.
In Texas, Bush lowered to 14 the age at which a juvenile can be tried as an adult, but he saw no need to also lower the age at which one can sit on a jury; so "tried as an adult" is a lie — adults get a jury of their peers.
Bush: Actually got elected
Bush vows to raise the age at which one can buy a gun from 18 to 21, but he has no proposal to raise the age at which one can join the military or be drafted. If Bush has his way, we'll soon have a country where a 20-year-old can be forced to go overseas to use a machine gun, a tank, or an Apache helicopter, but when that same 20-year-old comes back home and wants to buy a revolver to defend himself, Bush will say, "Sorry. You're not old enough for that."
And, yes, Bush supports V-chips.
Bush doesn't seem to have much compassion for young people. But does that mean his appointees to the Supreme Court would share his view?
Bush has identified Justices Scalia and Thomas as the type of judges he would appoint (7). Unfortunately, I see no evidence that he likes them because of Thomas's refusal to support age-based censorship or Scalia's strict constructionist refusal to enforce unwritten parental rights (though Bush has said he likes strict constructionism). It seems more likely he praises Scalia to appeal to the Republican right-wing base and praises Thomas to appeal to blacks. But if Bush genuinely supports Thomas and Scalia, that would indicate he is willing to consider judges who will break down age-barriers.
Bush has promised that in selecting judges, he would not have any ideological litmus test (25). As Governor, Bush appointed four justices to the Texas Supreme Court. Did he screen them with a litmus test? Apparently not.
Youth issues seldom come up in this court, but after Bush signed a parental notification restriction on abortion, four times (as of July 9, 2000) the Texas Supreme Court has been approached after women tried the judicial bypass and were denied by the lower courts. In two of the cases, the Texas Supreme Court, lead by Bush's appointees, overturned the lower court rulings and insisted the courts lower the standard of proof a woman must present of her maturity in order to get the bypass. This infuriated Bush-supporters.
Of course, this also meant there were two other cases where the Court denied young women the right to control their own bodies and have their privacy respected. But Bush's appointees seem to be the most liberal justices on the Texas Supreme Court, with liberal watchdog groups agreeing that Bush's effect on the Court has been to move it (on various issues) from the far right to the moderate right (25).
It seems unlikely that Bush would appoint another Stevens, but he may well appoint another Scalia or Thomas. And that could be a slight improvement.
Al Gore, Jr.
Gore: the bullet
- Gore agreed with Bush about so much, I thought he should walk over to Bush and tongue-kiss him.
- —Michael Moore (on "Politically Incorrect" after a debate)
Like Bush, Jr., Gore, Jr. vows, "I will work to raise the age for handgun possession from 18 to 21" (26). I have to say I find this proposal rather jarring, given that the average age of America's rape victims is 16, while the average age of rapists is 27 (12). This proposal seems designed to make young victims even more vulnerable while keeping the predators armed to the teeth.
Like Bush, Jr., Gore, Jr. supports V-chips. But Gore goes even further, demanding computer manufactures install "a device to let parents see what websites their children have visited" (11). Do parents need a device to help them peep on their children's web-surfing? I believe the technology is already there. Last year in my debate class, one of my team members told me that in researching our topic, he'd web-surfed to the White House website, only instead of typing "whitehouse.gov", he'd typed "whitehouse.com" — a porno site — and then spent the next half-hour in a panic, surfing to as many sites as he could, hoping to bury the record of that visit before his religious parents got home and started snooping.
My teammate should not have had to go to that trouble. He should not have had to fear his parents. He should have been able to trust his parents to keep their noses out of his web-surfing. But that's the kind of insulting invasion Al Gore encourages. He's spent his political career following his wife in promoting the idea that youth have no right to their own culture that hasn't been inspected and approved by their parents. As Senator, Gore introduced legislation that would have made it illegal to sell any album with a warning label (i.e. any album in existence) to a minor.
The most dangerous, mentally unstable person I've ever met was a co-worker named Ted. He was a likable guy most of the time. But at least once a week he would snap and become dangerous. He frequently cussed-out customers at the bookstore, he threatened people, and he once hit me for reasons that remain a mystery. He had a lot of anger. He once told me about something he described as his most painful childhood memory. When he was in second grade, the movie Star Wars came out. Ted's parents, Seventh Day Adventists, would not let Ted go to a movie theater. Every other child in Ted's school saw Star Wars. It was the common culture of this generation. When children wanted to start a conversation with a classmate and feel out a potential friendship, they didn't ask "Have you seen Star Wars?" but only "How many times have you seen Star Wars?" Becoming an outcast, Ted tried lying, claiming he'd seen the movie and bluffing his way through conversations about it. Inevitably, he'd get facts about the movie mixed up and face further embarrassment and alienation.
I've never heard of anyone who wound up in jail or on a psychiatrist's couch because of childhood exposure to action movies. But many people have gone that way because of dominating parents. And Gore and his mentally-ill wife encourage more of this for more children.
Does Gore follow Bush in supporting age-limits on abortion? He won't say. He claims he's "pro-choice", but he shies away from specifying what that means. Other politicians have called themselves pro-choice, then gone ahead and passed parental-consent restrictions. (Examples include Governors Pete Wilson of California and Bill Clinton of Arkansas.) When Gore was in the House of Representatives, he attempted "to amend a federal civil rights bill to say that ‘the term "person" shall include unborn children from the moment of conception'" (1). He also voted for a bill to ban coverage of abortions in the Federal Employees Health Benefits package, without even an exception to save the woman's life. He voted to ban Medicare coverage of abortion, and wrote a letter to a constituent stating, "It is my deep personal conviction that abortion is wrong. Let me assure you that I share your belief that innocent human life must be protected, and I have an open mind about how to further this goal" (26). Earlier this year, Gore said, "I have always supported a woman's right to choose. And I support it today" (26), so Gore must have a very broad idea of what it means to be pro-choice.
Gore, in this campaign season, has tried to balance his hostility toward youth by promising health coverage for all children. If he's serious, this would be a beautiful accomplishment. But this promise sounds similar to one he and Clinton made eight years ago. Most likely, Gore isn't planning anything more than excuses and finger-pointing.
Gore hates youth as much as Bush — probably more so, given the proportion of his life he has dedicated to attacking youth. But how much will this influence his Supreme Court picks?
At the Clarence Thomas confirmation hearings, Gore said, "In reviewing Judge Thomas' judicial philosophy, I have not considered whether he is a conservative or a liberal. In the history of the Supreme Court, choices made on such a basis have had a way of backfiring" (21). More recently, however, on the March 14, 2000 edition of the News Hour with Jim Leher, Gore told Leher, "I will insist upon Justices who have an interpretation of the Constitution that's in keeping with the general philosophical approach that I have." Yikes!!
Luckily, there's always the chance that he's lying now. Gore has been known to do that.
Like Bush, Jr., Gore, Jr. must be judged on his record of previous appointments. While Gore has never appointed a judge, he has confirmed a few.
Gore, Jr. voted to confirm Bush, Jr.'s favorite Justice, Scalia (21). But I can find no evidence that Gore knew Scalia would occasionally oppose age-discrimination.
What about Bush, Jr.'s other favorite egalitarian on the Bench, Justice Thomas? At the confirmation hearings, Gore vocally supported Thomas, saying, "Clarence Thomas is an impressive man with an astounding background." He praised Thomas for having "a strength of character that is a beacon to all who will follow," and having "a quick and incisive intellect" (21). Ultimately though, Gore voted against Thomas for referring to members of Congress as "petty despots" (21).
From this, it would appear that Gore, Jr., like Bush, Jr., is at least tolerant of judges who tolerate youth. But confirming and appointing are two different things. So far, Gore has made only one appointment: his running mate. And he choose Joe Lieberman.
Lieberman is not the progressive that Clarence Thomas is. Lieberman supports abortion rights for older women, but parental notification restrictions for teenagers (24). Last year, Lieberman sponsored a bill to create a uniform "violence labeling system" for all movies, video games, and CD's, and making it illegal to sell "an entertainment product to anyone outside the age range identified by the label" (9). And who could forget his passionate support for the V-Chip?
Only one thing suggests Lieberman might tolerate youth: he supported the confirmation of Clarence Thomas. He praised Thomas's "strength of character, independence of mind, and intellect." Lieberman didn't directly praise Thomas's willingness to screw-over middle-agers as quickly as teenagers, but Lieberman did praise Thomas's maverick quality, saying Thomas, "does not find easy comfort in convention, but challenges settled truths with vigor and intelligence. ... Judge Thomas' judicial opinions have a distinctly different cast. They are, on the whole, solid, thoughtful and balanced" (21).
Once allegations surfaced about Thomas's sexual harassment of Anita Hill, Lieberman became quite upset with Thomas's accusers. "[T]he dissatisfaction I felt after the Thomas hearings is more a reflection of the shortcomings of the process, of which I feel Judge Thomas is a victim, rather than an indictment of his abilities or character." In fact, showing the type of vigor that Gore often shows, Lieberman told his fellow Senators he had investigated Hill's accusations himself and found, "there was never, certainly not, a case of sexual harassment, and not even a hint of impropriety" (21). (By "vigor', of course, I mean "willingness to lie his butt off".)
Ultimately, Lieberman backed down, but only because liberal Ralph Nader pressured him to change his vote (21). It's possible that Lieberman is tolerant of those who, like Thomas, will occasionally stand against age-discrimination. But there's no reason at all to believe Al Gore would ever nominate a tolerant judge.
Tell Me Who to Vote For!
- More for Gore?
Or the son of a drug lord?
None of the above.
Fµçk it, cut the cord.
- —Rage Against the Machine ("Guerilla Radio")
- Bush and Gore make me wanna RALPH!
- —Bumper sticker
For whom should people vote in this election if they want to see the Supreme Court more friendly toward youth? The apparent answer is: None of the above, sometimes referred to as "Ralph Nader". But for those who understand we live in a two-party system and aren't ready to throw their vote away on a protest, I hold a queasy stomach as I recommend voting for Bush.
Bush has not dedicated himself to age-hatred the way Gore has. If you need more examples, consider these:
1. Gore hired Naomi Wolfe, not just for fashion advice, but — and this was her official job description — for advice on reaching the youth vote. I saw her on a Sunday morning talk show explaining that her main qualification for this position was that she'd convinced Clinton to push school uniforms and V-chips. Hiring Wolfe to reach the youth vote is like hiring Pat Buchanan to reach the gay vote.
2. Talk about dominating parents! At the Democratic Convention, Gore's daughter told a story about how she'd once tired to build an igloo, but her father kept trying to "help" her whether she wanted him to or not. He worked hard to keep her from having an accomplishment of her own. This point was then proven when, at the end of her speech, Gore himself stepped out, upstaging her and stealing her one moment in the spotlight. If he's that much of a jerk in front of a national audience, imagine what he'll be like when he's making decisions about our Supreme Court that few Americans will follow closely.
3. Gore kissed that repulsive wife of his. Yuck!! Obviously, no man would kiss Tipper Gore out of physical attraction. He was making a statement, telling us he will continue to follow her crusade against youth.
Another reason to vote for Bush is this: it increases the chances that Stevens will stay on the bench for another four years. Stevens, the Supreme Court's last standing liberal, won't want to be replaced by a Republican, and he'll know there's no way a goof-ball like Bush could become a two-term president. If Gore loses because of voters going to Nader, the Democrats will have to nominate someone in 2004 who's progressive enough to reach out to the Nader voters. Stevens will wait so that president can choose his replacement. If Gore wins, however, Stevens will see little reason to tough it out. We'll never see the end of these conservative DLC Democrats. And the Republicans won't offer anyone more appealing to Stevens. If Gore wins, he'll probably pick Stevens's permanent replacement. And it won't be pretty.
While a Bush victory decreases the odds of Stevens leaving, it increases the chances of Rehnquist and O'Connor leaving. Given how bad these justices are, and given Bush's moderate appointments to the Texas Supreme Court, Bush replacing Rehnquist and O'Connor would almost certainly move the U.S. Supreme Court closer to the left as well as closer to a pro-youth viewpoint.
If Gore wins, Rehnquist and O'Connor are more likely to tough it out for another four years. If they retired anyway, Gore replacing them might make the Court more liberal, but not more friendly toward youth.
A Gore victory would increase the slight chance of Breyer leaving, but again there's little chance of Gore replacing him with anyone more tolerant toward youth.
A Gore victory would also make it easier for Ginsburg to leave, but given her medical problems, she'll probably leave soon regardless of who's elected president. And again, it is slightly better for youth if Bush picks her replacement.
The best scenario for youth would be President Bush picking replacements for O'Connor and Rehnquist, followed by a good Democrat picking replacements for Ginsburg, Breyer and (God forbid) Stevens. The worst scenario would be President Gore picking replacements for any current justice, especially Stevens.
Post Script: In meeting my professor's deadline, I'm afraid I overlooked one of George W. Bush's greatest atrocities: his on-going support for private concentration camps for youth. For details, go to http://www.alternet.org/