1. Justices Scalia and Thomas would overrule Flast. Justice Thomas would overrule Tinker, too, and deny public school students any First Amendment rights.
2. Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:
I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for 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 for medicinal use.’â€The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.†See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
3. The Chief Justice’s opinion, too, indicates that the case would have come out differently if the banner had “convey[ed] any sort of political or religious message,” such as that involved in “political debate over the criminalization of drug use or possession,” rather than (in the Court’s view) mere “student speech celebrating illegal drug use.”
Debate, political and religious messages — protected. “Celebration” of illegal activity (drug use, anyway) — no go. That’s the upshot.
4. The majority opinion in Hein states at one point that “the expenditures at issue here were not made pursuant to any Act of Congress.” That is of course, not true — indeed, if it were true, the expendistures would be unconstitutional for that reason (a violation of the Appropriations Clause). What Justice Alito obviously means is that, in his terminology, there was no “specific,” “direct” or, especially “express” provision of a statute directing the religious use of the appropriations — the expenditure was instead pursuant to a broad grant of discretion to the Executive to spend as he sees fit. I agree with Justice Scalia and the dissent (i.e., with six of the Justices) that it’s hard to see why that should make any constitutional difference for purposes of Article III — but be that as it may, that’s now the test.
5. Importantly, the case is limited to taxpayer standing. As the plurality stresses (“respondents make no effort to show that [other executive-initiated] abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing”), in many cases involving executive expenditures for religious purposes, there may be plaintiffs with other grounds for standing, as in the countless cases challenging state government displays of creches, Ten Commandments, etc., and all of the school prayer cases.
6. Moreover, as Justice Kennedy (the controlling vote) emphasizes, just because something is nonjusticiable does not mean that the President can do it — at least, not in an Administration that takes seriously the President’s obligation to faithfully execute the law: “It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.”
7. Kennedy’s controlling concurrence emphasizes that the case, in his view, involved a challenge to executive branch speechmaking — something he is loathe to allow the courts to superintend:
The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties. The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information. And were this constant supervision to take place the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.
8. Justice Scalia, urging the overruling of Flast, concludes that the Court’s taxpayer standing precedents are a hopeless mess of inconsistent holdings and unprincipled distinctions. In so doing, he addresses directly the recent academic celebration (esp. by Cass Sunstein) of “judicial minimalism”: “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason. The final phrase there is obviously a deliberate comment on, and contrast with, Justice Holmes’s famous epigram (which Scalia quotes later in his opinion) that the life of the law “has not been logic: it has been experience.”
That speaks volumes about Justice Scalia’s view of his own jurisprudence: The life of the law — experience. But the soul of the law?: “Logic and reason” — at least as Justice Scalia sees it. A purported neo- (faux) formalism, perhaps — but with very little support on the Court.
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