So as not to leave Morning’s Minion with the only Supreme Court commentary here, I thought I would offer my own. Color me unimpressed. My antipathy to English common law doesn’t help matters. I’m greatly in favor of civil law such as the Napoleonic Code over our present system.
“Bong Hits 4 Jesus” is a case that for whatever reason managed to wind up on the high court. (MORSE ET AL. v. FREDERICK) I find myself in agreement with Justice Breyer oddly enough in this case.
Nor, if we are to avoid the risk of interpretations that are too broad or too narrow, is it easy to offer practically valuable guidance. Students will test the limits of acceptable behavior in myriad ways better known to schoolteachers than to judges; school officials need a degree of flexible authority to respond to disciplinary challenges; and the law has always considered the relationship between teachers and students special. Under these circumstances, the more detailed the Court’s supervision becomes, the more likely its law will engender further disputes among teachers and students. Consequently, larger numbers of those disputes will likely make their way from the schoolhouse to the courthouse. Yet no one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office.
This has echoes of Justice Thomas’s concurring opinion:
I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.
Chief Justice Roberts continued a pattern of ruling specifically and broadly. He spends a number of paragraphs deciding the type of speech “Bong Hits 4 Jesus” is. One should keep in mind the type of case this was. The case was summarily dismissed by the trial court. What this means is that the facts as stipulated did not merit the case going to trial. Yet, we have the Chief Justice making findings of fact in his ruling. Yes, the Supreme Court needed to take this case after the 9th Circuit decided that summary judgement was not warranted, but why on earth is Chief Justice Roberts making findings of fact in his judgement? What the Chief Justice pretty much says is that if the sign said “Legalize Jesus Taking Bong Hits”, we would have an issue for trial. This is ridiculous. We needn’t have a federal trial every time some punk behaves egregiously at a school function. What makes this worse is that there was clear support for a narrow ruling along the lines of Breyer’s judgement that wouldn’t have opened this Pandora’s Box.
It would be nice, but a dream, if the Supreme Court would start ruling that the federal courts do not have jurisdiction regarding every piddly matter. Particularly in a matter such as this, the trial judge ruled that there was no federal interest in this case. Secondly, it would be nice if the Supreme Court would stop basing it’s rulings to such a circumstantial degree. Either the law applies ABC precedent, or it applies to XYZ precedent. We don’t need new 3 part tests every time. If the nation is not satisfied with the ruling, let them amend the law. It is almost like the Supreme Court rejects the concept that we can have bad, but constitutional law. This was recognized in Kelo, and people had a fit. But you know what, the law was changed to grant the individuals rights that the Court did not deem them having.
Instead of adjudicating law, we end up with a law making body. The Roberts Court seems likely to continue this disastrous policy. Be it conservative or liberal jurisprudence, it seems to be all outcome based. This would be okay if the outcome desired was justice. Unfortunately justice only seems to be a subsidiary good to ideology.
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