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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Saturday, June 23, 2007 ::
    So here's what I wonder about TSAA v. Brentwood Academy (Brentwood II): why didn't Thomas join the Kennedy concurrence? If he had, it would have become the opinion of the Court: TSAA would still win; a wildly off-purpose expansion of the First Amendment would still have been avoided; but the expansion of Ohralik beyond attorney-client communications, deplored by Kennedy and the three who joined him (including Our Hero), would have been avoided.

    Was it because Thomas insisted on advocating (quite rightly) the reversal of Brentwood I, which held, outrageously, that a private voluntary association, governing private and public school sports equally, is a state actor? But he could still have written separately on this point, just as he did (Scalia joining him) in Gonzalez v. Carhart, to stake out his ground that the precedents are wrong though the Court applies them correctly.

    Maybe it was because he also wanted to stress his disagreement with the majority's use of Pickering. Kennedy and his concurrers agree with the controlling opinion on this one. But Kreacher wonders: this case has yielded an opinion that is partly for the Court and partly plurality. Couldn't it have yielded a Kennedy opinion, joined in full by the Chief, Scalia, Thomas, and Alito, with Stevens et al. writing separately (if they insist) to apply Ohralik and Pickering?

    The result we have would be explained if Roberts, Scalia, Kennedy, and Alito all believe quite strongly, and in contrast with Thomas, that the relationship between Brentwood Academy and the TSAA is indistinguisable for 1st Am. purpses from the employee-employer relationships in the Pickering line of cases. But why would they think that? Just as the plurality's application of Ohralik threatens to make non-attorney-client communications as vulnerable to regulation as attorney-client communications, doesn't the majority's appication of Pickering threaten the 1st Am. rights of private schools by treating them as employees of a voluntary and organization they have joined for non-economic reasons? (Well, for reasons different in kind from the reasons people take jobs.)


    :: David M. Wagner 10:03 PM [+] ::

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