Today brought a decision in the “Bong Hits 4 Jesus” case, Morse. The ruling was 5-4, and the Alito concurrence that was joined by Kennedy will be controlling in the case, not the opinion of the Chief Justice. SCOTUSblog has preliminary thoughts on the holding:

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.’”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.[emphasis author's]

Thankfully the Court rejected the Government’s contention that anything that interferes with the ‘educational mission’ of the school could be censored. Clearly such a holding would mean that any protest would probably be against the educational mission of a school, and even worse could effectively render student debate/protest of educational issues at their own school as unprotected speech.

Even the Chief Justice said that had the banner conveyed any sort of political or religious message it would be acceptable. That speech about the political debate around criminalization of drug use or possession is protected, but viewed the current case as a celebration of illegal activity.

The controlling opinion here does worry me, it’s clear that they went to great lengths to say that this was a very limited holding. That this only dealt with the encouragement of drug use, and that such regulation should be at the “far reaches” of what the First allows. However, too many outstanding issues remain.

The opinion makes mention of debating medical marijuana usage, or other politics surrounding drugs as long as it doesn’t advocate their illegal use. This part really bothers me because the holding seems vague enough to invite reckless censorship by school officials, and as this case was just decided it will be interpreted by District and Circuit courts.

I want to know when an argument for the legalization, decriminalization, or use of marijuana as a medical substance shifts from a political discussion and into an argument for drug use. It seems too vague to me, in saying that medical marijuana has clear benefits, is that not encouraging its use, perhaps by individuals who have heard this argument and may suffer from symptoms that medical marijuana may help? Is the distinction that it is assumed that medical marijuana would be a legal enterprise and so would be equivalent to student speech advocating the continued use of anti-depressants?   However, with abuse of pharmaceuticals on the rise, could even that be considered promoting drug use? Or what if a student simply says, “I think marijuana should be legalized,” quick reading of the opinion suggests that would be protected, but interpretation by lower courts can once again force the issue.

In regard to student speech, I believe that full First Amendment rights should be extended to students attending public schools. The object of any education is to create a well-rounded member of society. When it comes to their role in civics, instruction should not be limited to a classroom discussion and memorization of the Preamble to the Constitution. Being able to practice those rights is crucial to the development of a citizenry that truly values freedom.

Students need to debate complex and often gray area issues about politics and social situations in their education. But outside of teacher led discussion, students must also be able to practice such freedom within the school itself and in their discussions with one another or in criticism of teachers and curricula.

I hope that the inconsistencies I have seen aren’t abused and that further cases aren’t necessary. But as it stands, I think that it is inevitable that a challenge will occur, though it will be against the interpretation of the holding. This is another decision where Kennedy should have sided with the minority, and simply said in his opinion that schools need to work within the community and alongside parents to handle issues like these, but instead, with the slam of a gavel, the ability to broach the controversial at school is now curtailed, even if only in reference to taking bong hits for Jesus.

Kansas Attorney General Phill Kline has a tremendous amount of power in addition to too many ‘l’s in his name. The linked Slate article follows on the heels of a NY Times piece, neither of which (surprise surprise, given the sources), is what you’d call complimentary.

You won’t call me that, either. Personally, I’m used to conservatives being “strict original intent” kinda guys for the purposes of interpreting the Constitution. Certainly “strict adherence to and respect for the law” types, at any rate. And here’s Phill Kline, conceivably the most conservative man in a conservative state, fiddling with the rule of law to please himself. For those who haven’t read the article, this is the man who subpoenad 90 women’s abortion records, and is trying to outlaw teen sex, both in an attempt to weed out child abuse in the state of Kansas. Slate’s analysis is masterly, and I won’t repeat it here, but it’s pretty clear that he’s going after abortion clinics.

One wonders about the separation of powers when Presidents avow “signing statements” and state AGs interpret the law however they damn well please in order to stamp out their pet moral peeve.

I haven’t heard about any outcry in Kansas, and I know that the kids who might be thrown in jail (or juvee) as a result don’t have a vote, and therefore won’t be attentively courted by public officials in the upcoming election. My instinct here is to say that Phill Kline is everything wrong with our nation’s understanding of the rule of law, and that he should be fired.

But I’m just one man, I live hundreds of miles away, and I’m not the people of Kansas. Who knows–maybe they really do think it’s for the best.

Sen. Lincoln Chafee (R-RI) has promised to vote “no” on the Alito nomination, according to the Washington Times today. He’ll vote today to end the Democratic filibuster and eventually won’t support Alito’s nomination in the up-or-down vote. This is probably a safe bet for Chafee given the outrage in (blue) Rhode Island that could erupt if he voted yes… but it will only prove safe if he can make it through the GOP primaries this fall.

His GOP challenger, former mayer of Cranston, RI, Steve Laffey, and Dem challenger Matt Brown, have each levied attacks on Linc for being a “flip-flopper”: Laffey said that Linc has an “inability to make a firm decision, which once again made him irrelevant to the process in the Senate.” As a very conservative Republican, Laffey’s future prospects in the Senate seem especially irrelevant. On the other hand, if Laffey can wrest the GOP nomination away from Chafee because of local Republican disillusionment with Chafee’s moderate voting record (National Journal says his social policy votes are more liberal than 60% of Senators).

If the “no” vote against Alito does hand Laffey the GOP nod this fall, it “could kill the GOP’s chance of holding a seat in liberal Rhode Island,” because a Laffey candidacy would almost certainly be too conservative to win in Rhode Island.

I’m usually a fan of the Becker-Posner Blog, and occasionally of the opinions of the titled author, 7th Circuit court judge Richard Posner. He’s a prolific author who writes volumes of popular jurisprudence, including today’s piece for The New Republic defending the NSA wiretap program. What if it works, he asks? Two problems.

When Posner says that “Law in the United States is not a Platonic abstraction but a flexible tool of social policy,” I wonder why a prominent jurist like himself would not see how some (many?) value upholding the law for it’s own sake. As Jon Margolick mentioned to me earlier today, it is the reason why drug dealers get off on procedural technicalities–isn’t the important part that the law maintain its integrity, not that we advance the social policy of ridding our society of drug abuse? Years from now we want procedural justice to still mean something, and that includes making sure that the executive branch is not de facto excused from their misdeeds. Because the President is not above the law, it is indefensible to set a precedent that he may flout laws he dislikes–just because he wants to.

A second problem, as Posner alludes to, is that we can’t know the success of the program due to secrecy limitations. The results of the NSA program, including whether it has or has not thwarted attacks, cannot therefore be used in evaluating the domestic wiretapping policy. But that’s not the point: the question of successful (or even of good) policy is distinct from the question of legality. It looks like the administration (and Posner?) is trying to make the policy logically antecedent to the question of law. But if it can be shown that eavesdropping on international-domestic telephone conversations has successfully thwarted terrorist attacks, then perhaps a case can be made for expanding the legal boundaries of wiretapping: amend FISA, or have Congress authorize Bush’s program. The repugnance of the program mostly centers on how the (largely) unchecked executive branch has thwarted the limits imposed by FISA, and in the process, has probably broken the law. The architects of the program, if they knew they were breaking the law, need to be held accountable, now. I await Specter’s judiciary hearings with bated breath.

(I’m comforted by Posner’s sensible suggestion for a new rule on FISA that evidence gleaned through the wiretapping programs only be available in national security-related cases, and not, as he says, cases involving people who are defrauding the IRS. Safeguards like this, which would prevent the Bush administration from overreaching and gobbling up more law enforcement powers, make the legal use of wiretapping programs seem, at least on their face, less onerous.)

This article comes in response to Will Saletan’s op-ed in the NY Times regarding the abortion debate, and I think it rebuts his points pretty clearly. This isn’t to say that he isn’t correct, or that this article is. The interesting thing about this exchange is that Saletan puts forth what he claims to be a new argument in the abortion debate, and the Feministe blog post effectively shows that it not only isn’t new, it’s old.

This raises the question: Given how reasonable this argument seems to be (i.e., “Abortion should be quick, accessible and rare”), and how much of the American public agrees with it….why are there such vicious sides taken in the abortion argument? Nearly everyone agrees that abortion is sometimes the best of bad options. Nearly everyone agrees that abortion is never an enjoyable or desirable outcome. Nearly everyone agrees that we should be doing more for sexual education and pregnancy prevention. Why, then, do we appear to be so far from a consensus?

The answer, I think, lies in the inevitable specialization of a two-party political system. As we come to identify with a particular side, we adopt that side’s positions. Over time, we forget the nuanced distinctions between ‘our’ position and ‘theirs’, and we know simply that ours is right and theirs is wrong. Once the nuances are gone, we slowly boil the opposing argument down to a sound byte: “Pro-choice” or “pro-life”, for example. And because of market specialization–because Democrats have blue news sources and Republicans red ones, and likewise for the political persuasions of friends, family, and neighbors–we never hear the heartfelt, complex and (all too often) shockingly similar arguments from the other side.

The irony is, of course, that I’m posting this on a blog dedicated to Democrats. The message must be that if you’re reading this, you should find a conservative to post on our other topics. If you’re a conservative, post us your favorite blogs, and please–please!–leave your opinions here for us to read.

The two-party system suffocates in its own design if we do not exchange ideas. Let’s not let that happen.

On Monday, 14 law professors and former federal government officials, including Ronald Dworkin, Laurence Tribe, and Ronald Dworkin sent a letter to congressional leaders. In it is a critique of Justice’s argument on the constitutionality of the NSA program and it worth a read.

I think my opinion on this matter would be easy to figure out. I do not want to give any lengthy commentary since there are many other blogs who have handled the matter. However, from what I have read and what I understand of constitutional law, this illegal government spying on Americans is a clear violation of individual rights. Particularly, this run around civil liberties is unnecessarily. The intelligence agency has the capacity to read your mail, your email and your telephone conversation. It does have to obtain a warrant from a special court created for this purpose. The burden of proof was even relaxed after 9/11! Either way the court very rarely rejects requests making this expansion unnecessary in addition to illegal in my mind.

I got to thinking to myself, what would happen if Alito confirmed and installed upon the bench joins a majority to overturn Roe v. Wade? Immediately state legislatures would have to act and decide what their statutes on abortion would read. Women in many parts of the country would be denied the ability to seek safe abortions by medical professionals, and we’d return of course to underground and unsanitary medical practices, or perhaps secret doctors making house calls only to be exposed in what one would assume would be the many witch hunts to follow.

Then that particularly crass and calculating side of me kicks into gear. Is Roe being overturned really in the best interests of the conservative movement? Abortion, and now to a certain degree gay bashing are the tools of the right wing to hold in the religious right and bring them out election after election. But what happens if they get what they want? Do the religious stay at home in greater numbers thinking that their war has been won? If Roe is overturned then activists must then turn their attention to the states, why waste their time on federal elections that will have little affect?

I’d argue that for the conservative movement, at least the component of which includes the electoral support of a religious entity who they frequently ignored in past administrations–Bush is of course the exception–that winning the “war against the baby killers” would be the worst thing to happen. Immediately they would lose a major magnet to attract these voters, after all Supreme Court precedent doesn’t change over night, not even in an election. Without Roe states decide, and so it seems logical to me that these activists, the Robertsons of the world, would turn their wrath to such renegade states like New Jersey and California who continue this murderous campaign outlawed by our Supreme Court, blessed of course by God.

Yet, then would come the outrage from the majority of Americans who support the right to choose. The preceding elections would almost assuredly be windfalls for Democrats. Without even saying it or campaigning for it they would gain a monstrous share of the women’s vote and urban and women voters would come out in record numbers as never before, probably handing majorities to the Democratic party for their long and brave support for a woman’s right to choose. It could usher in a premature realignment, one that may not take hold, but one that would almost assuredly give the Democrats a chance to reshape Washington and with justices growing older perhaps the court with younger justices who will assuredly benefit from advances in modern medicine to live longer and healthier lives.

Now of course all of this is to suggest that the plight of women in states that would outlaw abortion would be an acceptable casualty in our fight. This of course I would not subscribe to and would not encourage. However, there does remain the question, are republicans really dumb enough to overturn Roe, or do they realize that Roe is their major calling card to reach the religious right they so depended on in 2004.

Both photos courtesy of Reuters, via the NY Times, these are pictures of Stanley Tookie Williams when he was first sentenced to death and committed to jail, and of him today, hours before his lethal injection.

With the same basic facts as Zac’s post on Mr. Williams, co-founder of the Crips gang, I have a different question: Why do we use prison as a punishment? Rehabilitation? Punishment? Deterrence? Protection? How many of these goals does it actually serve? What are the good reasons for putting someone behind bars–to wit, depriving them of their life, liberty and pursuit of happiness–for any length of time? How about for a year? For two years? For twenty? For fifty? Is fifty years worse than the death penalty?

Have we ever considered alternatives? Would such alternatives be viable if it meant not depriving prisoners of their youth while still punishing and exacting payment for society?

Again: Why do we use prison?

Gov. Arnold Schwarzenegger on Monday refused to spare the life of Stanley Tookie Williams, a death row inmate. I had been hopeful about this all week. I am plainly against the death penalty and Williams has done a lot of good in jail. Many have spoken about redemption and whether one can get it, and I believe this man has really done good things not as a show but out of a legitimate and serious change of heart. Life in jail is no fun time and I abhor that we as a society put anyone to death, especially someone who seems to be benefiting society a great deal now.

Good Talk Left post on the matter.

Alito has been on the bench for many years, with good credentials and considerable experience. No doubt Alito will produce a fight over ideology and interpretation, but it is a fight that Bush has calculated he can will. The fight and the victory gives him distraction from the other scandals and a successful conservative nomination. However, it will get interesting.

Beyond this brief introduction, I have little to say on the matter currently.

Slate has a good article on how its the batter we’ve been waiting for. And on how he tried to restrict Roe

The TImes has a look at his legal career.

WaPo on reactions.

The BBC has one of the better articles on the matter.

And a must read article at the economist:

In nominating Mr Alito so soon after the indictment was announced, the president is seeking to seize the headlines back from Mr Fitzgerald. He certainly needs to do something. Last week saw not only the Miers withdrawal and Mr Libby’s indictment, but the number of American troops killed in Iraq cross the 2,000 mark. Mr Bush’s poll ratings lurk at the lowest levels of his presidency. Conservatives, including his evangelical base, had begun to get uneasy even before the nomination of the not-right-enough Ms Miers. Rather than reaching across the aisle with his latest Supreme Court pick, it seems that Mr Bush has now put repairing his conservative base first. If he can succeed in getting Mr Alito confirmed, he will have won his first big victory for some time. But the Democrats, sensing a weak administration, will do what they can to make the process as painful as possible.

Jeff Berman and Ed Kilgore discuss the implications of Alito’s nomination at TPMcafe.

It’s also time to remain focused on the other big news in Washington right now; who will the President tap to the Supreme Court. It’s obvious that this time the President has to go for greatness, he needs a quick confirmation instead of getting into a whole different mess of problems. Some leading contenders for the seat are:

Judge Samuel Alito, 54, of the 3rd circuit is nicknamed “Scalito;” noted dissent in Casey argued that PA had rational reasons for requiring women to notify their husbands before seeking abortions; wrote majority opinion in Shore High School BOE v. PS 381, holding that a student’s right to a free public education under the Ind. with Disabilities Act was violated because “itt failed to protect the student from bullying by fellow students who taunted the student based on his lack of athleticism and his perceived sexual orientation.”

Judge J. Michael Luttig, 51, of the 4th circuit, ex-Scalia, ex-Berger clerk appt. to the court in 1991. Dissented in Hamdi, favoring broad executive powers to determine whether a detainee is an enemy combatant. Conservative rulings in endagered species act cases have endeared him to activists. Is well-known by the DC legal establishment; considered one of the best minds of his generation.

Judge Michael McConnell, 50, of the 10th circuit. Considered one of the most brilliant legal minds of his generation; well-regarded by even liberal law professors. Believed majority in Bush v. Gore ruled incorrectly. Has written extensively on legal prohibition of abortion, leaving something for opponents and supporters of abortion rights to chew on. Personally opposes abortion; he signed a pro-life petition in ‘95.

If the President is to nominate some one like a Priscilla Owens or another radical choice that prompted the original filibuster debate, I think the Democrats need to welcome the challenge, the President is in a weakened position, which should allow us to get at least an excellent justice with the quality of John Roberts, or a more moderate choice that would still appease the conservatives.

Quickly though, I’d like to point out that the withdrawal of Miers and the support it’s received from Republican Senators is not wholly a function of the right wing, I still feel that part of it was here incompetence at returning a new questionnaire, answering questions, and showing a vast knowledge of the issues. Because of that, I think the Democrats can force a more moderate justice than the Religious Right would prefer, and most Republicans would support him/her, because they want to move what has been a slow second term along.

Breaking news in this hour. Miers to withdraw her nomination to the Supreme Court. More to come. UPDATE: 1:57pm

The Hotline, subscription only, as always has more background information on the Miers withdrawal. The important points surround the reasoning, which we’re told to believe is simply because they are trying to protect privilege, but in actuality

Another close Bush adviser [said]: “Publicly, they are going to say it is over protecting executive privilege. Privately, you have an accomplished woman who probably isn’t going to do well in the hearing, so why put her through that?”

So she wasn’t going to do well in the hearings, perhaps what this advisor is really trying to say is that her ability to speak on Constitutional issues was weak at best, having poor showings in conversations even with conservatives.

The tipping point came within the past several days. GOP Senators privately communicated to WH CoS Andy Card that unless they had access to hard evidence that Miers was conversant in constitutional issues, there was no way she would be confirmed. Her performance in private meetings was weak, at best, these senators told Bush. Throughout the day, says a senior Senate aide, there were “conversations throughout the day at the staff level.” Late yesterday, Senate Maj. Leader Bill Frist (R-TN) called Card and told him in no uncertain terms that Miers would probably not be confirmed. An aide: “He provided frank assessment of situation in the Senate. [The] lay of land on committee.” After that call, according to White House sources, Bush and Card met privately with Miers, and they decided jointly that preserving WH privilege on documents was too important a principle to risk.

So, not only were her conservative bona-fides being questioned, but also her ability to give thoughtful opinions a Senator would expect from a Supreme Court Justice on the Constitution. From the beginning my feeling with Miers was that of inexperience and being unqualified based on previous experience. It bothered me then when some Democrats used it as an opportunity to get a less conservative justice. However if the press tacks on to the story of her withdrawal because of these shortcomings, then we have Harry Reid saying

The radical right wing of the Republican Party killed the Harriet Miers nomination. Apparently, Ms. Miers did not satisfy those who want to pack the Supreme Court with rigid ideologues.

Democrats need to keep the “celebration” on this one quiet, because it shouldn’t be present. If she was unqualified we shouldn’t be putting our necks out there, I’m seeing some blogs saying what happened to confirm them all, and everything, and yes of course the hypocrisy here is great. But if this woman was unqualified, which I think some of us believe she was, then there’s no reason for us to say anything that could come back to haunt us.