A Supreme Court Conversation
Yes, I think it's fair to say that I am doing a lot less celebrating than you are today. Me, I look out at the landscape and all I can see if 5-4, 5-4, 5-4 as far as the eye can see. Samuel Alito and John Roberts, hand in hand, are claiming not to be overruling the cases they are either overruling or rendering nonsensical. ("Look how moderate we are!") And Antonin Scalia and Clarence Thomas are Jonesing to go ahead and overrule everything in their path. Anthony Kennedy, completely in the thrall of all of them, it seems, is doing whatever it is he is doing.
Before we get to the merits of both Hein (the faith-based case) and FEC v. WRTL(the campaign finance case), let's start by squaring the forest with the trees here. What we are looking at is a sea change at the high court, a sea change that is going to happen in a hundred small waves of 5-4, 5-4, 5-4. Don't today's overrulings by not quite overruling look like Alito's original plan for Roe? Don't bother to kill the old precedent, just hollow it out from the inside and hope nobody notices?
One little precatory note on the speech cases, Morse v. Frederick (Bong Hits 4 Jesus) and WRTL: The Chief Justice wrote the majority opinions in both of them and he read them one after the other this morning. What you won't catch in the opinions themselves was Roberts' little verbal segue between the two. First, in Morse he acknowledged that the student message on the banner was both "cryptic," yet also clearly advocacy of a "pro-drug" message, which a school principal can properly suppress. Then he slid smoothly into WRTL by distinguishing the student speech in Morse from what he called the "core political speech" of the Wisconsin pro-life group. The point of this little editorial: The WRTL ads are serious important speech, whereas goofy student speech is not. With that as preview, it's not hard to guess the results.
In Morse, Roberts goes to great lengths to insert meaning into the silliness of the words on the student banner. He insists the phrase "Bong Hits 4 Jesus" can be read as "celebrating drug use"; indeed to get there he needed only insert the imaginary words, "bong hits [are a good thing]." When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say "bong hits [will kill you]."
Having effortlessly decoded the unintended pro-drug message behind the student speech in Morse, the chief then takes the issue ad in FEC at face value. The commercial that Wisconsin Right to Life wanted to run—which didn't say "don't elect Russ Feingold" but asked you to think darn hard about what Feingold did and to let him know that he is a bad, bad man—is protected "core political speech," regardless of its effect on viewers or the integrity of elections.
At least in his Morse concurrence, Alito backs up on this zany consequence a bit. He can't support "any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana,'" which suggests that after today, a majority of the court believes students can hold up banners that say "legalize drugs," but not banners with strings of random drug words unconnected by a verb. Attention students: You can still be political at school. But the Constitution stops protecting you the moment you cross the line into merely weird.
Walter, you began this week with the observation that justices do a lot more than just call balls and strikes. Looking at these two cases in tandem makes that point perfectly. In the first case, the umpire gets to toss some new words out onto the field in order to get the outcome he desires. In the other, he merely reads out decades of congressional purpose and intent.
Bong hits 4 Jesus? Bong hits for me!!
Persuade me on the merits of the taxpayer standing case. I am all ears.
Dahlia Lithwick writes about the courts and the law for Slate.