This is the true conservative legacy

[drwex]

Obedience to authority trumps freedom. http://www.cnn.com/2007/LAW/06/25/free.speech/

The saddest part of this is not that we (those who think free speech is important) lost, but that we lost 6-3. Scalito were a foregone conclusion. The drugs bogeyman scares them beyond reason. Roberts always kowtows to authority over individuals. But that's only four votes. The true sadnesses here are Kennedy and Breyer, either of whom could have gone the other way.(*) Breyer wrote a concurrence, but that's cold comfort now.

One takeaway message here is that we need at least two new appointments by a more open-minded president to have any hope of seeing personal rights begin to re-ascend. Meanwhile we're in for a very bad ride.

(*) No idea why, at this point. law.com doesn't have any analyses up as of this moment. I expect some will emerge.

Comments

[ariesd.livejournal.com]

what got me was I thought there was some pseudo legality to "bong hits" in Alaska where the case came from?

I'm surprised they didn't say the religious statement was also against the rules because of school/religion issues.

Dunno.

[drwex]

Alaska decriminalized the personal possession of a small amount of marijuana (I think <1oz) a long time ago. That was reversed by a Republican governor and was just brought back within the past year. I'd have to check the MPP's site to get details.

[ckd]

The opinion is built largely upon the argument that Drugs Are Bad and therefore anything that "advocates" drug use is So Bad it trumps free speech rights, because schools must keep kids away from Evil Drugs.

But it's even better if you read Thomas's concurrence. He says, in so many words, that he thinks Tinker is "without basis in the Constitution" ("As originally understood, the Constitution does not afford students a right to free speech in public schools.") and that he "join[s] the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so."

Seriously. He's arguing that since schools are in loco parentis, and because historically they could tell kids to shut up, that therefore students have no free speech rights whatsoever.

[drwex]

That surprises me not one whit. It's a position he's held for some time. He's also in favor of permitting public schools to use corporal punishment.

[ckd]

Yeah, he mentioned a bunch of those opinions in his dissent, too. Boldly moving forward to the 1850s!

[feste-sylvain.livejournal.com]

It's much more muddled than that. The major part of the decision was 5-4, and Justice Breyer joined the fascists on the part you focused on. Then there was some other part where the 5-4 was comprised of different Justices than the main part.

I also want to slap you upside the head for using the "Scalito" bogon, but I need some hard evidence before I do so. But be warned: it's coming.

Justice Scalia, for better or for worse (obviously worse in this case) is an ideolog; Junior Justice Alito is a technocrat who likely was the one who added the wording "at a school-sanctioned event" to the decision. This means that school administrators still can't control their students' off-campus activities (which may also be the hook that got Justice Kennedy).

[drwex]

I also want to slap you upside the head for using the "Scalito" bogon, but I need some hard evidence before I do so. But be warned: it's coming.

I'll put on my fencing mask. As a first-order approximation, check their voting records. I believe they vote as a block (bloc?) in well over 75% of decisions, regardless of whether they're in majority or minority. There may be ideological differences between them but from my point of view that's like analyzing the different species of cockroach that's infesting my kitchen. I don't really care about the difference because it doesn't have a functional output that matters.

[feste-sylvain.livejournal.com]

There is a lack of hard evidence exactly because the Junior Justice hasn't been on the SCotUS all that long. People used to believe that Justice Thomas was just a rubber stamp for Scalia; that lie hasn't been spread much since Thomas's scathing rejection of the decision that went against California's medical marijuana law.

There will come a time when the difference between an unsupportable ideolog's rant and a technocrat's hair-splitting becomes critical at the functional output level. I will indeed wait for you to put on your fencing mask when that day comes.

[drwex]

Example that proves the rule. The fact that they publicly disagreed on one case just points up how rare that occurrence is. If they regularly had different opinions we wouldn't find that one case so remarkable. The point is still true: they vote together and if you can predict one vote you can predict all three.