Mary Ann Glendon and Douglas Kmeic offer this Legal Times commentary on the Supreme Court's OT2006 and the roles of Chief Justice Roberts and Justice Alito.
Despite some ideological carping from those who lost cases that depended upon the extension of past decisions, Roberts and Alito have also shown themselves to be strongly respectful of precedent. Advocates this term urged overturning previous abortion decisions, a Warren Court ruling allowing taxpayers to sue in religion cases, and campaign spending limits. The new justices left those precedents in place, often resisting both their unwarranted extension to new facts and the urging of Justices Antonin Scalia and Clarence Thomas to overrule them.
This cannot fairly be dubbed faux deference. Tinker v. Des Moines Independent School District (1969) still meaningfully invites robust discussion of political and social views in school, as Alito and Kennedy strongly reaffirmed in Morse v. Frederick, even though Tinker did not protect advocacy of illegal drug use. Likewise, the allowance in Grutter v. Bollinger (2003) for race as one factor in pursuit of higher-education diversity was reaffirmed, notwithstanding the Court’s rebuff of outright racial balancing.
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I can't imagine what could be less respectful of precedent than bringing viewpoint discrimination into first amendment jurisprudence in this way.
Admittedly Alito at least (and probably Roberts) seem to be going to a fair bit of argumentative effort to square their opinions with the earlier holdings. So they don't offer faux deference in the most trivial sense of giving an easily transparent glaze of respect for precedent. However, they are refusing to adopt the clear intent and reasoning of prior opinions. For instance in Morse they technically avoided literally contradicting Tinker and used language from Bethel but they repudiated the reasoning and obvious principles the justices in these cases employed
It's entirely possible, likely even, that Morse was a special exception but it's the only case I've read in enough detail to feel confident commenting on.
And Glendon and Kmiec's revisionist approach to framing the "real" holdings of prior cases is manifestly unconvincing.
A brief summary: The Supreme Court got it wrong. "BONG HiTs 4 JESUS" doesn't advocate anything.
what is disturbing about the case is that the majority knew that it was intended as a meaningless, albeit attention-getting, phrase, but because they felt it could be resonably interpreted to advocate/celebrate drug use, the principle was justified in suspending Frederick.
What was even more amazing is that Frederick was among a group of people -- including one non-school student -- who brought and displayed the banner, and had not shown up for class that day. Even though one non-student was among the group holding the banner, it was confiscated by the principle. And Frederick was across the street from the group of students being supervised by the principle who had come as a group to see the torch pass.
...and yet the "precedent" respecting Alito and Roberts held that Frederick was not within his rights to hold up a banner expressing a COLLECTIVE sentiment that included someone who could in no way be subjected to school authority?
I think that the argument is not that meaningless speech deserves more protection than speech advocating something but rather that content-based restrictions on free speech do not apply to speech that does not contain the requisite content.
A parallel would be that FDA regulations governing medicines and food additives cannot be applied to a product that does not contain medicines or food additives.
And then there is the inconvenient cases where Alito and Roberts did vote to overrule. Lets start with Bowles, overruling Thompson simply so that a habeas petitioner cannot appeal. And then there is Leegin overruling a century old precedent. And then Hein which effectively overruled Flast without saying so, earning the Wrath of Scalia. And I don't even have to start going on about Carhart . . . .
It may very well be that "respect for precedent" is overrated. Nor am I in disagreement with Roberts' and Alito's votes on the merits in every case. But to say that "Roberts and Alito have also shown themselves to be strongly respectful of precedent" is patently ridiculous. If this is "strongly respectful," pray tell, what would be "disrespectful"?
However, the thing that annoys me most about it is this article is it acts as support for the typical conservative rant that the liberal justices are activists and don't "respect precedent" or apply "original intent", unlike good conservative justices. However, the evidence is overwhelming (particularly in this term) that conservative justices disregard both when they conflict with their political beliefs.
I don't at all disagree, I just thought it was a tactical mistake for the dissent (and I presume the petitioners) to allow the debate to become whether the speech was either (a) advocating drug use or (b) simply meaningless. On those terms, the dissent could only argue choice (b). I think if choice (c) had been that it was a political message (albeit a silly one), it would have put it more squarely in the Tinker context and would have been harder to "distinguish."
Dave, does this count as an example?
OK ... No More Bong Hits for Kmeic ... he's getting into Yoo territory here. This must be an episode of Star Trek, so tell the extraterrestrials to give us back the Glendon & Kmeic who belong here so these two can be returned to the bizarro parallel universe from whence they came.
I can't even begin to figure why Kmeic is engaging this argument ... The side he perceives as correct has won and W's boys JR &SA brought home the goods exactly as he and his fellow travelers desired. I'd expect him to trumpet the effective reversal of precedents he found odious!
Of course, sometimes precedent is clear, and they squarely overrule it. And? Neither Alito nor Roberts told Congress, "We will slavishly follow every precedent, no matter how silly, unworkable, or completely divorced from any textual support in the constitution or statute."
(And as for BH4J being both wrongly decided and "viewpoint discrimination," I agree. But many who oppose it on those grounds seemed to have few problems with the Ninth Circuit's gay T-shirt case. Certain viewpoints on homosexuality are okay to discriminate against in schools.
In the Morse case, as they point out, reasonable people can disagree about the meaning of Tinker. If the facts of the case had happened outside of the school context, it would be an easy case, but once you bring in the Supreme Court's incoherent school precedents, the case becomes a lot more difficult. The main disagreement between the majority and the dissent in that case is on the facts (i.e. what the significance of the sign means). Even if you take the dissenters' side on that (as commenter "Phillip" does), that has very little to do with precedent.
Randy Picker explains Leegin and Dr. Miles quite well at his post here. I don't know enough about antitrust to comment much further than that. Leegin is hard to square with a strong conception of stare decisis, but it doesn't really look like anyone on the Supreme Court (with the possible exception of Justice Stevens) has such a strong conception of stare decisis that they couldn't accommodate an overruling of Dr. Miles.
As for the school cases, I don't know if honest debate about Brown v. Board of Education is still possible these days. As I see it, people have debated for decades whether Brown stood for an anticlassification (color-blindness) principle or an antisubordination principle. The decision didn't have a lot of "law" in it to begin with, so the debate about the meaning of Brown is more like a debate over the meaning of MLK's "I Have a Dream" speech than about the meaning of a legal precedent. Roberts et al. approach it like the latter and criticize Breyer for approaching it like the former. I don't know what the answer is, but posts like this are just ignorant and dishonest.
Justice Scalia, joined by Justices Thomas and Kennedy: "This faux judicial restraint is judicial obfuscation."
As we know, Justices Scalia and Thomas are particularly well-known for denouncing originalism.
It is nice of you to offer to help David out, but he did not qualify his statement in any such manner. And my basic point is that you don't need to think Roberts and Alito are voting for the wrong results, or that the Warren Court got the right results, or to have any particular judicial philosophy, to think that Roberts and Alito are not in fact "strongly respectful" of precedent. Indeed, the fact that they are getting this same critique from both people who disagree and people who agree with their actual votes, and from jurists of all sorts, is a pretty good piece of evidence that the critique is not ideological, and may just be true.
1) Scalia criticized a particular decision, not Roberts and Alito's entire existence as justices.
2) I think you'll find that Scalia was issuing a very different criticism of Roberts/Alito than the people we're discussing. Scalia is saying that they're too respectful of precedent, and as a result are issuing incomprehensible rulings.
Given that he didn't have the support to make his views law, he would have been wiser to have written a more circumspect opinion on affirmative action.
On the other hand, I agree that Morse is so narrow as to be difficult for lower courts to apply. It is dangerous to make special exceptions to the First Amendment solely for subjects that Supreme Court justices happen to personally favor or dislike, and the Court's foray into viewpoint non-neutrality was both unnecesssary and troubling. A better opinion would have provided guidance for a more general class of school speech/discipline situations.
You can't seriously mean this- "Scalia is saying that they're too respectful of precedent...." My french is rusty, but I'm pretty sure faux means fake.
1) I'm pretty sure most people agree that Justices Roberts and Alito exist.
2) Here is the quote in context:
"Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. See post, at 24–25 (Souter, J., dissenting). This faux judicial restraint is judicial obfuscation."
You might also want to familiarize yourself with the meaning of the word "faux".
This is false. Kennedy rejected the color-blind Constitution rhetoric as incoherent and expressly asserted that racial integration was a compelling interest.
If they weren't respectful of precedent, they could have -- would have -- simply taken the Thomas/Scalia approach in this case.