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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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    :: Wednesday, June 27, 2007 ::
    Today's Tom Toles cartoon on the Washington Post editiorial page: Supreme Court building bedecked with banner reading "BONG HITS 4 CONSERVATIVES."

    Well that'll make a great decoration for my office door for a few weeks, but seriously folks, I'm not the only conservative who thinks the situation is more -- what's the word? -- nuanced than that. The Family Research Council joins me in having reservations about Morse v. Frederick:
    FRC is concerned about restrictions on the free speech of students because it is often religious or conservative speech that is restricted, but in this case the Court ruled narrowly that the banner promoted illegal drug use and was therefore validly found to be disruptive.
    Yes -- in fact, so narrowly that there is now a separate 1st Am. rule just for drug advocacy in public schools. Isn't there someone on the Court who usually objects to rules so narrow that they apply only to the case at issue -- and who did so, loudly, in a case decided the same day as Morse? Two, actually?

    Meanwhile, Norm Ornstein is upset that CJ Roberts isn't "institution-minded" like he thought. I don't know what exactly being "institution-minded" entails, but apparently for Mr. Ornstein it rules out being vote #5 in 5-4 opinions, which, when you think about it, makes being "institution-minded" very hard to do, because you only end up being vote #5 on the other side.

    Prof. Charles Fried, when he was Solicitor General, used to defend advocacy strategies that displeased conservatives with the observation, "I can count to five." Apparently this ability is not to be despised.

    Yes yes yes, I know a Chief can, theoretically, craft a position so narrow that it provokes little or no controversy within the Court, as this Chief notably did in Ayotte, an abortion case of all things (written by Justice O'Connor, but issued during that interregnal period when she was still on the Court but Roberts was already Chief). But that won't always work: the conservatives aren't the only ones on the Court with some strongly held views.

    Anyway, can anything be more O'Connorian than the majority opinion in Morse (written by Roberts) and the plurality opinion in Hein (joined by him)? I don't mean for conservative readers to mark me down a Roberts-hata, but re both him and Alito, the "OMG he's different from St. Sandy" rhetoric is a little overblown.

    One more opinion-delivery day this season....

    :: David M. Wagner 6:17 PM [+] ::

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