Strengthening Constitutional Self-Government

No Left Turns

A Good but not Great Ruling?

Daniel Henninger shows us why the new additions to the Court--though good--may not have the fortitude required to make them great. The ruling in the "Bong Hits 4 Jesus" case is correct; the kid has no first amendment right to hold up such a sign. But the reasoning in Roberts’ and Alito’s opinions was, perhaps, too narrow as it tread too closely to the flawed logic of Tinker and other precedents that ought not to be held up to posterity. Here’s the opinion of the Court. Henninger recommends reading Thomas’ excellent concurring opinion as one of the most excellent essays on the failures of American education to appear in the last 35 years.

Discussions - 10 Comments

Roberts-style narrow rulings, as also seen in the McCain-Feingold case and in today's reverse-racism cases, attempt to rein in liberal bureaucrats but ultimately leave things up to them. Plaintiffs in similar positions to the winners in these cases, but not precisely the same position, have to start from square one -- working their way through hostile liberal bureaucrats and hostile liberal courts to a Supreme Court that may well rule in their favor, years later. If a Democratic president doesn't add a new liberal vote in the meantime. None of this proves Scalia's publicly stated claim that he and Thomas are "the only originalists" on the Court. I still have high hopes for Roberts and Alito. But serious conservative rulings that go beyond the immediate litigation are unlikely unless or until we get one more vote. And may take longer than that. Roberts probably believes that genuine reversals of liberal precedent must occur slowly or they won't be accepted by society. And he may well be right in that. But we still need to be clear about the significance of the recent decisions. They're good, and they're far better than the available alternative. But they're not great.

Roberts and Alito should not be blamed for the narrowness of the so-called "desegregation" rulings today, however. That is Kennedy's fault. The full Roberts opinion seems to be great stuff.

Check out the AP story on this. It's delightful. Breyer shook his head and rolled his eyes as Roberts delibered the opinion in the "desegregation" cases. He then read his dissent, twice as long as any he'd given before, jabbing his hand in the right air, complaining about how much the Court had changed in the country with this decision, and saying the nation would come to regret it. All in all, a fine day's work for the good guys, incrementalism notwithstanding!!!

This was a terrible decision. Would you have a different opinion if the sign had read "Jesus is the ONLY way to heaven." When a day comes that a student gets in trouble for holding such a sign, be glad this opinion was narrow and be sad that it came out at all.


Should the rightness of an opinion depend on whose bull is being gored?

Thomas wrote something? I thought he just voted.

Comment 5 by piker62 (formerly DanielK): Thomas wrote something? I thought he just voted.


Perhaps if you read something, you'd know that he wrote something.

Thomas' opinion is very impressive. Kudos to him and his clerks. It becomes all the more impressive when you read the Breyer concurrence/dissent, which by my brief read-over suggests that the Roberts and Alito positions are really untenable, impossibly narrow.

Matt Franck at Bench Memos seems to agree, and he says a few worthy words on why high school speech ain't college speech. My understanding is that the "ONLY way to heaven" hypothetical would be a different sort of case.

Carl: You might want to consider reading an article (URL below) by David French.


A snippet: "All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics."


As a lawyer, I have seen way too many times how decisions like this one snowball into ugly swords of oppression.


http://phibetacons.nationalreview.com/post/?q=ZDUxMjJkZWVmZTBhMjFkYjIwZWU2ZGZiZGRiMjdlM2Q=

David French is my kind civil libertarian and I hope he keeps fighting the good fight as he sees it. His experience-backed arguments give me some pause, but I just call this one differently. On the common-sense level, his argument is that we gotta keep school administrators from banning/punishing "Bong Hits 4 Jesus" banners, because otherwise, kooky liberal ones will ban "God Hates Sodomy" or "There is no God but Allah" banners. And my common-sense response is, at the high school level particularly, we should want our adminsistrators to feel they have authority, to feel that when they draw the line, they aren't going to be second-guessed by rationales pertaining to whether it was obscene-but-religious, potentially-but-not-actually-disruptive, promoting-illegality-but-political. French says, backed by experience, that you chip at speech rights of high-schoolers, collegiate speech-rights come under pressure. To which I respond, the same argument works in reverse--you expand high-school speech rights, you put pressure on junior high speech rights to expand. An enviroment of civilized, democratic speech is a fragile thing that cannot be quantified by rights. The zone between adulthood and childhood is a subtle, fragile thing that cannot be delineated solely by the articulation of rights. MORE speech rights are not always a good thing, and this is particularly obvious in the context of public schooling.

Whether the rules governing our secondary principals ought to proceed from the First Amendment is a more complicated issue.

But there are these things call school board elections. If your child's school is ruled by adminstrators hostile to Christian speech, or gay speech, or what have you, vote in board members who will fire them. Isn't that better than dialing 911 to the Supreme Court and asking them to find a right to Bong-referencing speech-by-minors in the Constitution?

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