It is widely believed that the U.S. Supreme Court delivers the final word on the meaning of the Constitution. Yet the Court is only one of many participants. Often it is not the primary or dominant one. A recent Supreme Court decision, U.S. v. Stevens, helps illustrate this point. On April 20, 2010, it held that a statute passed by Congress to criminalize the commercial creation, sale or possession of certain depictions of animal cruelty was substantially overbroad and therefore invalid under the First Amendment. The Court split, 8-1, with only Justice Samuel Alito Jr. dissenting. It might appear that, at least on this particular constitutional dispute, the Court would have the final word.

In fact, the Court’s decision was just one stage of many, and by no means the final stage. The Court explained that the legislative background of this statute focused primarily on the interstate market of “crush videos.” These videos feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice and hamsters. They depict women slowly crushing animals to death with their bare feet or while wearing high-heeled shoes. Persons with a sexual fetish find the depictions sexually arousing and exciting. The problem with the statute, however, is that it was not written specifically for crush videos, even if that was the legislative intent. As a result, the Justice Department prosecuted someone for trafficking in videos of dog fighting. The statute was so broad, as the Court noted, that it could criminalize extremely popular hunting videos and hunting magazines.

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