Free Speech & The Roberts Court

That's essentially what George Will's column in Monday's Jewish World Review is about. Mr. Will is one of the leading experts on the role of the courts, especially with regard to free speech issues. Mr. Will uses this past week's ruling on the Ninth Circus ruling that whistleblowers that didn't follow the whistleblower laws were protected by the First Amendment. As is so often the case, the Supreme Court slapped down that ruling.

Last Tuesday, in a decision of special interest to America's 22 million public employees, the Supreme Court, with yet another 5 to 4 ruling, told the Court of Appeals for the 9th Circuit, which is always entertaining but frequently reversed (16 times last term), not to neglect half of those standards. And it told Richard Ceballos, in effect, that Holmes had half a point.

----------

The 9th Circuit sided with Ceballos, citing the fact that the subject of his memo was a matter of "public concern." But, Kennedy noted, the 9th Circuit did not consider whether Ceballos's speech was made in his "capacity as a citizen." And: "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

I'm not surprised that the Ninth Circus decided to apply part of the key principles in precedential rulings rather than applying the entire law. Their work is frequently reversed becuase of its shoddy reading of precedents or, in many cases, because it makes rulings based on whim rather than the Constitution. So why does this matter? Mr. Will explains it best.

Ceballos's case was originally argued after Justice Sandra Day O'Connor announced her retirement but before she was replaced by Alito. It was then reargued, which suggests that without Alito the court was split 4 to 4. If so, the addition of Alito enabled the court to prevent the 9th Circuit's approach from pulling the nation's courts even more deeply than they already are into supervising American life.

What were the Roberts and Alito confirmation battles about? That.

I agree with Mr. Will's opinion that this is why the Roberts and Alito confirmations were important, though I don't agree with the characterization that the confirmations were much of a fight, especially Chief Justice Roberts' confirmation.

This decision is also why conservatives must get to the polls this November. As I've said before, the difference between a Chairman Specter and a Chairman Leahy is the difference between Alito and O'Connor.

---

Posted Monday, June 5, 2006 2:22 AM

May 2006 Posts

No comments.