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Decisions issued in the final days of a Supreme Court term are often the most newsworthy and contentious of the term. Some rulings that emerge in the final hectic weeks also display blunter language than the justices use earlier in the term, when they have more time for niceties and moderation. The term just ended was no exception. Here are some nuggets from one day, June 25, in the final week of decisions of the Court’s term.
• Justice John Paul Stevens, in his June 25 dissent in Morse v. Frederick , sharply criticized the majority’s view that a banner unfurled by an Alaska high school student bearing the words “Bong Hits 4 Jesus” was a pro-drug message: “It takes real imagination to read a �cryptic’ message (the Court’s characterization, not mine . . . ) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.” • Justice Clarence Thomas’ concurrence in Morse v. Frederick can be read as a direct rebuke to Justice Samuel Alito Jr.’s embrace, contained in another concurrence, of Tinker v. Des Moines Independent Community School District , the 1969 decision that first protected student free speech rights. Thomas said he would overturn Tinker altogether:Tinker has undermined the traditional authority of teachers to maintain order in public schools. . . . We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either �[g]ibberish’ . . . or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to �surrender control of the American public school system to public school students.’ “ • Chief Justice John Roberts Jr., in the main opinion June 25 in Federal Election Commission v. Wisconsin Right to Life , indicated frustration with past high court opinions that justified more and more government regulation of campaign speech: “To justify regulation of WRTL’s ads, this [government] interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough. Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them. To equate WRTL’s ads with contributions is to ignore their value as political speech.” • For his part, Justice Antonin Scalia was also frustrated with the FEC case. In a footnote in his concurrence, he voiced impatience with the Roberts “principal” opinion for failing to come out and say directly that it was overturning the 2003 case McConnell v. FEC , a result Scalia advocates: “Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. . . . This faux judicial restraint is judicial obfuscation.” • Justice David Souter also was upset with the majority in the FEC case, but for a different reason: Souter supports the 2003 McConnell decision, which he said the Court majority had effectively overruled June 25: “The price of McConnell‘s demise . . . seems to me to be a high one. The Court (and, I think, the country) loses when important precedent is overruled without good reason, and there is no justification for departing from our usual rule of stare decisis here.” • Scalia also torched his conservative brethren in a concurrence in Hein v. Freedom From Religion Foundation June 25. Justice Samuel Alito Jr. wrote the opinion containing the Court’s judgment that taxpayers do not have standing, merely as taxpayers, to challenge President George W. Bush’s support of faith-based initiatives on First Amendment grounds. But Scalia wanted the Court to go further and overturn a 1968 ruling, Flast v. Cohen , which allowed taxpayer standing in some establishment clause cases:Flast‘s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect. It is time — it is past time — to call an end. Flast should be overruled.”
Tony Mauro can be contacted at [email protected].

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