12 Lewis & Clark L. Rev. [i] (2008)

handle is hein.journals/lewclr12 and id is 1 raw text is: Lewis & Clark
Law Review

VOLUME 12                      SPRING 2008                     NuiaEmR 1
Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-
Jeffersonian Colloquy
K enneth  W .  Starr  ...............................................
The Supreme Court's decision in Morse v. Frederick, otherwise known as
the Bong Hits 4Jesus case, highlights the non-realization of ChiefJus-
tice Roberts's goal of greater cohesion and unanimity among the nine
Justices. Bong Hits is an example of the ChiefJustice appearing increas-
ingly among the majority, Justice Stevens speaking vigorously for the
minority, andJustice Thomas's iconoclastic approach to constitutional
issues. Importantly, the case also reveals a trend of alliance between
Justices Kennedy and Alito and their shared Hamiltonian skepticism
of local power, as well as Chief Justice Roberts' unsuccessful attempts
to limit constitutional questions to narrow grounds of decision. This
Essay explores the divided factions of the Court through the lens of
Bong Hits and offers further insight into the Justices' constitutional
How Will Morse v. Frederick Be Applied?
Erwin  Chemerinsky ..............................................    17
In 2007, the Supreme Court decided Morse v. Frederick, a 54 decision
in which ChiefJustice Roberts, writing for the majority, decided that a
student could be punished for displaying a banner with the words
BONG HiTS 4JESUS on a public sidewalk. In this Essay, the author
explores the implications of this decision, focusing on the important
question of how it will be understood and applied by school officials,
school boards, and lower court judges. The author suggests that the
opinion was misguided and-from a First Amendment perspective-
highly undesirable.
The author argues that the decision cannot be justified under
existing First Amendment principles, and cautions that it could be
seen as authorizing punishment of students for speech that is deemed
distasteful or offensive, even just juvenile. However, the concurring
opinion by Justice Alito suggests that the decision is exceedingly nar-
row and based on a very unusual factual context. The author notes
that if Justice Alito's opinion is seen as defining the scope of the hold-
ing, the case establishes only the power of schools to punish speech
encouraging illegal drug use rather than giving school officials great
discretion to punish student speech.
Despite the fact that Morse v. Frederick is consistent with decisions
from the Supreme Court and lower federal courts over the last two
decades, the author's hope is that Chief Justice Roberts's majority
opinion will be read through the prism of Justice Alito's concurring

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