Bong Hits For Jesus

With the Supreme Court poised to nullify the Health Care Law, we face the greatest thwarting of one branch by another since the New Deal.

In last Sunday's New York Times, we were reassured it's not a given the Court will act to undo the law, because predicting how justices will vote is "Dicey."

I beg to differ. 

It is not a dicey matter to predict how Fox News will react to anything President Obama says, even if it's, "God Bless the United States of America."


There is a very simple lens through which one can peer at the current Supreme Court and this lens has the power of a crystal ball: Look through it and you can know exactly how four of the justices (Scalia/Thomas/Alito/Roberts) will vote on any given issue with social content: These apocalyptic four horsemen will always vote for the powerful over the powerless, for money over the poor and, had they been voting in another era, for the slaveowner over the slave. There is no doubt these four would have voted Dred Scott could not sue in the Supreme Court because, as a slave, being the property of the master, he had no standing to sue.

The Constitution, written in the eighteenth century by men who not only owned slaves but enthusiastically kept them in bondage, was written before the human voice could be amplified, before radio or television could given the stage to one voice and, effectively deny it to others, before big money had become institutionalized in our body politic.

And yet, Scalia and Thomas and Alito and Roberts call themselves "Originalists," men who look only to this sacred text for all the answers, because otherwise, they might be in danger of thinking for themselves and creating law rather than simply applying it.

The judge who sentences a man for selling marijuana, even thought the judge does not believe the sale of marijuana should be illegal, is apply law rather than creating it. The judge who says a corporation is entitled to the protection of the First Amendment just as an individual human being, is creating new law.

But the clearest recent insight about this Court, at least for my money is contained in the justices's opinions on Morse vs Frederick, or the Bong Hits for Jesus case.

It is here the prejudices of the justices are at their most naked, despite their customary attempts to clothe them in arguments about tangential issues.

Justice Roberts spends much time denying the argument the student (Frederick) was unjustly treated by the principal who ran across the street and tore down his sign, "Bong Hits for Jesus" because the student had taken pains to leave school grounds and set up camp outside of the school's territory, making him free to express an opinion beyond the control of the school administration. 

Much time is spent by the justices writing for the majority explaining why students are not entitled to free speech the way adults are entitled to free speech, at least as long as the students are enrolled in public schools, paid for by the government. Private schools, presumably can expell students whenever they want and for whatever reason. 


But the real truth outs in Justice Thomas's opinion. What really disturbs Thomas is the student's "impertinence."  Being an originalist, he takes us back to the first public schools, which he admits did not exist when the original constitution was written but he says the First Amendment really didn't apply to the states until the Fourteenth Amendment was ratified, which was in the nineteenth century, when public schools did exist, so we can all breathe a sigh of relief that looking at what schools were like and the complete control teachers and administrators had over the students in those days is now a relevant consideration. 

School masters, or simply Masters, as Thomas calls them, ruled the students with an iron hand--Thomas tells us approvingly. Teachers spoke and students listened, Thomas tells us, and that is the way things ought to be. Masters could whip or cane their students. They could beat to a pulp any student who tried to belittle them or act insubordinately.  

Thomas is deeply offended by Tinker and other decisions which suggested the teacher should be limited in his ability to control the speech of the student--he is offended by any limitation, like the restriction the student's speech has to  be disruptive to educational goals or the safety of the school Teachers ought to have complete control period, in Thomas's view.

He has a point, because if you really had to look at the harm done by Bong Hits for Jesus, you get pretty lame pretty fast. 

As Justice Stevens notes, you'd have to be a complete idiot to be at risk for being persuaded to use drugs by reading that sign.  

It's in the back and forth between the justices you really see the truth: Souter says this sounds like a kid being cheeky; Stevens says the kid may be a knucklehead or a show off but he poses no threat the Western Civilization.  Roberts and most especially Thomas see insurrection by students as the first step to undoing society. They sound like Nixon scolding the "Bums" who demonstrated against the Viet Nam war on campuses. 

And the student protests against the war in Vietnam echo through the case law raised here, in a case of students who wore black arm bands to protest the war. Students defying their teachers, defying adult authority is the real nightmare which terrifies and enrages Thomas, Roberts, Scalia and Alito, in just about that  order. Those who are last would be first and that's what terrifies this court.

Justice Roberts knows this, it's pretty clear, because he rebukes his colleagues and others who want to claim the reason this speech has to be controlled is because it implies a disagreement with the schools "education mission" to teach that drugs are wrong. Roberts says the case is not about drugs but about money--because the student is suing the principal who tore up his sign and suspended him for violating his right to free speech.


No, what bothers Roberts is the same thing that bothers Thomas: The student has been impertinent and sassy and deserves to be slapped down. He has disagreed with the anti drug hysteria and mocks it and makes his principal and all those sanctimonious adults who travel with her look like the idiots they are.

As if suppressing the very words, "The war on drugs is a travesty," will "educate," our children.

As if "education" is simple indoctrination. 

If you are a Supreme Court justice whose first five years of education was being told what to think without the option of objecting, questioning, this might seem like education to you.

But there are those of us who grew up in America thinking education was about questioning dogma, not swallowing it unchewed.


The Supreme Court cannot see that. 

For the Supreme Court, truth is handed down, impertinence is an affront to be crushed, the masters should rule and free speech is just for the masters.