Supreme Court Activity: A Few Days Ago...

Many of you may know of Aaron Streett, the associate at Baker Botts LLP, who writes the email newsletter Supreme Court Today. Streett, a former WHR clerk, follows in the tradition of John Elwood and Mark Stancil by providing humorous up-to-date commentary on cert grants and decisions from SCOTUS. He has kindly allowed us to reproduce his commentary on PrawfsBlawg, which I will do pretty regularly. If you are keen to make sure you don't miss any of his updates, however, you should sign up for the email newsletter by writing him at aaron.streett at bakerbotts.com. Here's Aaron's reportage from Friday's activity on the Court. Feel free to weigh in on the questions raised in the comments.

Morse v. Frederick, 06-278

A public school student (Frederick) was suspended for unfurling a large banner reading “Bong Hits 4 Jesus” as the 2002 Olympic Torch Relay passed by his campus. He sued the principal under § 1983 for this affront to the First Amendment, even claiming that his suspension was lengthened because he quoted Thomas Jefferson when he was confronted. The principal says she was just enforcing school policy against speech that promotes illegal drug use. The district court granted summary judgment for the principal under Bethel School District v. Fraser (1986), which it read to allow school officials to punish “offensive” speech. The CA9 reversed. It held that Bethel is limited to sexually offensive speech (and apparently does not cover mere incitement to illegal drug use). The court therefore applied Tinker v. Des Moines (1969), under which a school may restrict speech only if it is likely to substantially disrupt school activities. The court held that the principal failed this standard because Frederick’s speech occurred just outside of campus and not in a setting where it was likely to disrupt any educational activities. Not only that, the court stripped the principal of qualified immunity, applying its own unique qualified-immunity test—“Whether a reasonable official should have predicted that the Ninth Circuit would find her actions unlawful.” (OK, so it wasn’t quite that bad, but it was pretty close.)

The principal, now represented by Judge/SG/IC Ken Starr, argues that (1) her actions were a permissible regulation of “offensive” student speech under Frasier; and (2) the Ninth Circuit should not have applied a qualified immunity test that holds a high school principal monetarily liable for actions that the district judge found perfectly constitutional. This is the first student speech case in nearly 20 years and one can hope that it will be a landmark reconciliation of the tension between Frasier and Tinker. So why did the Supremes re-list this case four times before granting it? My guess is they were seriously considering Starr’s request for summary reversal on qualified immunity grounds without having to reach the constitutional merits. A draft summary reversal opinion may have failed to get the necessary votes, or the Court may have just changed its mind and decided to hear the merits issue. Or maybe the Justices read Tommy Goldstein’s SCOTUSblog post and realized they’d better start filling up their docket.

Hein v. Freedom From Religion Foundation, 06-157

Respondent is an organization dedicated to vindicating the freedom mistakenly omitted from the Bill of Rights and FDR’s Four Freedoms. Its members claim that the Bush Administration violated the Establishment Clause by holding conferences to promote the President’s “Faith-Based Initiative”—the program that allows religious organizations to obtain government funding for the delivery of social welfare services. Congress did not earmark appropriations to be used for the conferences; rather, the Executive Branch spent general appropriations pursuant to an executive order. And none of the money in question went to the religious groups themselves.

It’s well known that a citizen does not have standing to challenge Congressional spending simply by virtue of being a taxpayer. There’s an equally well known exception to this rule: a taxpayer may challenge Congressional spending that violates the Establishment Clause. But does a taxpayer have standing when the Establishment Clause violation occurs only because the Executive Branch chooses, of its own volition, to spend general Congressional appropriations to promote religion? Judge Posner and a divided 7th Circuit said yes. The SG and the other circuits that have addressed the issue disagree. Along with the global warming case argued Wednesday (Massachusetts v. EPA), this case creates a blockbuster term on Article III standing, with Justice Kennedy quite possibly deciding the direction of the law.

Wilkie v. Robbins, 06-219

The respondent claims that federal Interior Department agents tried to “extort” a right-of-way across his land, and when he refused, retaliated against him by fining him and taking various other actions. Before all you libertarian types declare this Kelo Part II, the SG claims that the agents were merely enforcing a law under which a landowner who wants a right-of-way across federal lands must give the feds a right-of-way across his land. The landowner, in a great feat of creative lawyering, filed a Bivens action for violation of his alleged 5th Amendment right to exclude the government from his property; a “5th Amendment retaliation claim” (no, I’ve never heard of that one either); and a RICO claim for extortion of his property. Remarkably, the 10th Circuit accepted all of these claims and denied the agents qualified immunity. The SG claims that these Bivens and RICO claims do not exist at all, much less against federal regulators carrying out their duties. Methinks the SG has the better of this argument, and a reversal is forthcoming.

One final note: While today’s three lucky petitioners’ counsel are undoubtedly happy their cases were granted, they can kiss their Christmas vacations good-bye. Due to the Court’s empty February docket, all petitioners’ briefs are due January 5. That’s 40% less briefing time than usual.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice.