The Breakfast Table

Scalia and Kagan: The Court’s Two Would-Be Bloggers

Dear Walter and Paul:

Walter, I really appreciated your post on whether the court’s redoubled commitment to a child’s right to obtain information—even over the objection of her parents—might have implications for information regarding reproductive rights. Paul, you are right to say that Justice Clarence Thomas stands alone, in Bong Hits and again in Brown, when he stands for the proposition that children simply have no First Amendment rights, at school or at home.

Still: I am trying to imagine five justices agreeing to apply Justice Antonin Scalia’s analysis in yesterday’s video-game case to a safe-sex video—and I just can’t get there. We all agree that Scalia finds a First Amendment right to bypass parents when it comes to activity he can liken to reading. Or political activity. Or church attendance. I strongly suspect that for the majority of this court, obtaining information about reproductive freedom is analogous to neither sneaking a peek at Odysseus, nor slipping into a church. This goes to Paul’s nice point about how unwanted information now infiltrates the home in ways the Framers could never have anticipated. No matter how many colonial tracts about the perils of witchcraft you may read to your children, the days in which parents are the only, or even the primary, gateway to their information are gone. Also, we haven’t really touched on Justice Stephen Breyer’s dissent beyond Walter’s observation that he is clearly writing for the social scientists. He is right to point out that the ways America’s laws make no sense when it comes to filtering sexual and violent content for kids. But then I am very, very Canadian in that regard.

There are so many other things we haven’t touched on and may not get to. Paul, I agree that the startling part of the Arizona case is clearly Elena Kagan’s dissent. I don’t know what impact it will have in the long term but can we agree that she has Scalia’s gift for writing like a blogger—short crisp declarative sentences that were supposed to have been sandblasted away from three years of law school? “This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy.”

I admit I am already a sucker for her writing style, just as I have always been a sucker for Scalia’s. That said, it helps that I agree with her on the merits. I see no speech being suppressed in the Arizona scheme. If the court had somehow in their wisdom determined that hair—as opposed to money—equals speech, this would still just be a case about guys who don’t want to get haircuts. Paul is right to say nobody is going to change their minds on this issue any time soon.

Before we sign off, I might ask whether you think next term will be the term of the century, with immigration reform, and gay marriage, and individual mandates all detonating at once? If so, we should be doubly grateful for the relatively quiet term that’s just ended. Either way I am hugely grateful that you both agreed to spend the past few days with us.