Panetti v. Quarterman: Scott Panetti's Not So Paranoid Delusion

Scott Panetti received a measure of justice today as conservative Justice Anthony Kennedy sided with the Court's moderates in an opinion holding that the State of Texas and the federal Fifth Circuit Court of Appeals erroneously applied the Supreme Court's standard for competency to be executed. Panetti had a long and documented history of mental illness (schizophrenia) even well before he ever killed his wife's parents. Lately, Panetti's paranoid delusions concern a conspiracy the devil has undertaken with the State to execute him in order to stop him from preaching the Bible. As it turns out, Panetti may not be all that deluded, as the real story of his case is the State of Texas's machinations over the course of several years to set him up for execution, despite his illness.

All of the State's players in the Texas criminal justice system are elected: the district attorney who decides whether to seek death as well as the judge who presides over the trial and post-conviction review. Texas politics notoriously favors frontier justice. If, as a judge, you presided over a trial where a "monster" was sentenced to death--and kept him there--you're tough on crime, and thus re-electable. (One East Texas judge, Elizabeth Coker, recently had to recuse herself from a retrial when, after the previous trial, her campaign material for re-election boasted of how she "cleared the way for the jury to issue a death sentence" in a particular case.) Panetti's trial and subsequent state court appellate proceedings were coordinated to obtain this end from the beginning.

Based upon his mental health history, the judge presiding over Panetti's capital murder trial, Stephen B. Ables, conducted a competency-to-stand-trial inquiry. The competency inquiry concerns the defendant's ability to consult with his lawyer with a reasonable degree of rational understanding and to possess a rational as well as factual understanding of the proceedings against him. The court appointed a psychiatrist to evaluate Panetti:

Dr. E. Lee Simes reported that Mr. Panetti did not know what year it was or who the President was; had some looseness and tangentiality in his thought processes; admitted to both auditory and visual hallucinations, including seeing Jesus in his jail cell; related chronic delusions marked by religiosity; appeared to have “an odd fragmentation of his personality in describing himself as several different people;” and suffered from “obvious mental difficulties.” [1]

But court-appointed mental health experts, at least in Texas, have biases towards competency findings, because many depend heavily for the livelihood on the revenue they receive from such court appointments, and were they to find too many people incompetent--particularly in cases in which the media are following, as most capital murder cases are--judges would soon stop appointing them to evaluate pre-trial criminal defendants. So Dr. Simes, despite his above findings, concluded that Panetti was competent to stand trial.

A competency hearing was then held, and the jury deadlocked, 9-3 in favor of incompetency. [2] So the State got to try again. This time it got a jury that would find Panetti competent to stand trial. But Panetti, off his medication and delusional, inevitably began to believe that his lawyer was part of the grand satanic conspiracy against him, and so sought to represent himself at trial. The question of his competency to waive counsel was in the hands of the court alone. Judge Ables' finding him competent to so waive sealed his fate and made a death sentence a foregone conclusion. Judge Ables would have known this.

During his trial petitioner engaged in behavior later described by his standby counsel as “bizarre,” “scary,” and “trance-like.” According to the attorney, petitioner’s behavior both in private and in front of the jury made it evident that he was suffering from “mental incompetence,” and the net effect of this dynamic was to render the trial “truly a judicial farce, and a mockery of self-representation[.]” [3]

Panetti's brief before the Court provided a fuller account:

Wearing a cowboy outfit, Mr. Panetti raised a defense of not guilty by reason of insanity. He told the jury in his opening statement that only an insane person could prove insanity. Mr. Panetti made bizarre and inappropriate statements to the jury; went on irrelevant, irrational, and illogical reveries; exhibited sudden flights of ideas; asked questions that were incomprehensible or burdened with excessive and extraneous detail; rambled incessantly; perseverated; recited senseless, fragmented aphorisms and anecdotes; badgered the judge, the prosecuting attorney, and witnesses; and was unable to control his behavior despite the judge’s repeated efforts. Mr. Panetti applied for over 200 subpoenas, including John F. Kennedy, the Pope, and Jesus. See 36 RR 1207 (“I didn’t want to go subpoena crazy and I turned the Pope loose and J.F.K. and I never subpoenaed them, but Jesus Christ, he doesn’t need a subpoena. He’s right here with me, and we’ll get into that.”).

He made unintelligible comments to the panel of prospective jurors during general voir dire:

The death penalty doesn’t scare me, sure but not much. Be killed, power line, when I was a kid. I’ve got my Injun beliefs as a shaman. I sent the buffalo horn to my sister. Adjustment, Jesus wrote. I was born in the North woods in a reservation hospital and my granddad was a justice of the peace and he sobered up the doctor and the doctor was half sobered and they delivered me and my mom had a bad sickness in her milk and they wondered why I wasn’t dead, and a lot of beatings I took from the kids that show me had prejudice, which I don’t have any prejudice, and they said this about me in the newspapers in the beginning, but I don’t love Injuns and Mexicano, and Mexicano know, but I suffered a lot of reverse prejudice from Colored people, which is rare, darn rare, but I was named “He who doesn’t cry” because I didn’t cry when I should have, and I must admit, though, in Gillespie County Jail when I was in my little suicide box where there was an old boy committed suicide, I went through about a week of pretty much scuba diver’s tears; although, I don’t scuba.

***

He assumed the personality of “Sarge” when he testified about the crime:

Joe, Joe, Amanda, no talking, no words, knife, Sarge knife, threatened, scared, fight, no. Sarge shoots, CC. Sarge turns, shoots, boom, boom. Where is Amanda? Mom is dead. Joe look up. No. Where’s Birdie? Sonja bedroom. Birdie. Joe. Where’s Amanda? Sarge, Sarge, left a bullet. Scott, what? Scott, what did you see Sarge do?

Fall. Sonja, Joe, Amanda, kitchen. Joe bayonet, not attacking. Sarge not afraid, not threatened. Sarge not angry, not mad. Sarge, boom, boom. Sarge, boom, boom, boom, boom. Sarge, boom, boom.

Sarge is gone. No more Sarge. Sonja and Birdie. Birdie and Sonja. Joe, Amanda lying kitchen, here, there, blood. No, leave. Scott, remember exactly what Sarge did. Shot the lock. Walked in the kitchen. Sonja, where’s Birdie? Sonja here. Joe, bayonet, door, Amanda. Boom, boom, blood, blood.

Demons. Ha, ha, ha, ha, oh, Lord, oh, you.

The Court: Mr. Panetti, let’s stop. [4]

He was, of course, convicted and sentenced to death. One of the psychiatrists who had treated Panetti prior to the offense and who observed the trial reflected, "I suspect that the members of the Jury as lay persons saw Scott and thought he was normal and pretending to be mentally ill. In my opinion it [is] not possible to imitate the words and deeds of a mentally ill person. To an expert, there are too many details of voice and action that indicate the signs of mental illness: the inappropriate behavior, the repetition of words, the fixation on details, the bizarre presentation."[5] Less than two months later, the same judge ruled that Panetti was incompetent to waive appointment of counsel for the purpose of collateral review of his sentence. (For more on Panetti, his mental illness, and his farce of a trial, watch the short documentary, below.)



All of this was no more than a set-up to ensure that Panetti would receive a death sentence and, eventually, be executed. But why would Judge Ables order a competency hearing if he was attempting to manufacture a death sentence? And why would he insist on Panetti being represented by counsel during state post-conviction review if he was not trying to guarantee an execution? With Panetti's extensive, documented mental health history, a competency hearing was a necessary step to a death sentence. There was simply no way that any conviction obtained without one could have been upheld on appeal. As for insisting on state post-conviction counsel, that, too, helps insulate the conviction. At that stage, there is no longer a jury to act as a potential obstacle to the death sentence, as the trial court itself controls and acts as the fact-finder of the post-conviction proceedings. There was thus no longer any danger of Panetti getting any kind of relief, and so a lawyer could be tolerated. The provision of a lawyer in these proceedings would then act as a buffer of sorts against invalidation of the sentence in subsequent federal review.

As Panetti's execution became imminent in 2003, his lawyers--who at this stage could no longer be compensated by the courts and were therefore acting pro bono--again had to appeal to Judge Ables to stay the execution due to Panetti's incompetence. (The Eighth Amendment prohibits executing a person who is incompetent at the time of execution.) Despite his intimate knowledge of Panetti's mental health and additional material from a psychologist who had recently conducted a preliminary evaluation of Panetti, Ables did not so much as bother to grant a stay or a hearing to inquire into his competence to be executed. Panetti then requested relief from the federal district court, which granted a stay to“allow the state court a reasonable period of time to consider the evidence of [petitioner’s] current mental state.” The following is a description of the ensuing state court proceedings from Justice Kennedy's majority opinion:

Due to the absence of a transcript, the state-court proceedings after this point are not altogether clear. ... Based on the docket entries and the parties’ filings it appears the following occurred.

The state trial court ordered the parties to participate in a telephone conference on February 9, 2004, to discuss the status of the case. There followed a court directive instructing counsel to submit, by February 20, the names of mental health experts the court should consider appointing pursuant to Art. 46.05(f). The court also gave the parties until February 20 to submit any motions concerning the competency procedures and advised it would hold another status conference on that same date.

On February 19, 2004, petitioner filed 10 motions related to the Art. 46.05 proceedings. They included requests for transcription of the proceedings, a competency hearing comporting with the procedural due process requirements set forth in Ford, and funds to hire a mental health expert.

On February 20 the court failed to hold its scheduled status conference. Petitioner’s counsel called the courthouse and was advised Judge Ables was out of the office for the day. Counsel then called the Gillespie County District Attorney, who explained that the judge had informed state attorneys earlier that week that he was cancelling the conference he had set and would appoint the mental health experts without input from the parties.

On February 23, 2004, counsel for petitioner received an order, dated February 20, advising that the court was appointing two mental health experts pursuant to Art. §46.05(f). On February 25, at an informal status conference, the court denied two of petitioner’s motions, indicating it would consider the others when the court-appointed mental health experts completed their evaluations. On March 4, petitioner filed a motion explaining that a delayed ruling would render a number of the motions moot. There is no indication the court responded to this motion.

The court-appointed experts returned with their evaluation on April 28, 2004. Concluding that petitioner “knows that he is to be executed, and that his execution will result in his death,” and, moreover, that he “has the ability to understand the reason he is to be executed,” the experts alleged that petitioner’s uncooperative and bizarre behavior was due to calculated design: “Mr. Panetti deliberately and persistently chose to control and manipulate our interview situation,” they claimed. They maintained that petitioner “could answer questions about relevant legal issues . . . if he were willing to do so.”

The judge sent a letter to counsel, including petitioner’s attorney, Michael C. Gross, dated May 14, 2004. It said:

“Dear Counsel:

“It appears from the evaluations performed by [the court-appointed experts] that they are of the opinion that [petitioner] is competent to be executed in accordance with the standards set out in Art. 46.05 of the Code of Criminal Procedure.

“Mr. Gross, if you have any other matters you wish to have considered, please file them in the case papers and get me copies by 5:00 p.m. on May 21, 2004.”

Petitioner responded with a filing entitled “Objections to Experts’ Report, Renewed Motion for Funds To Hire Mental Health Expert and Investigator, Renewed Motion for Appointment of Counsel, and Motion for Competency Hearing” in Cause No. 3310 (May 24, 2004) (hereinafter Objections to Experts’ Report). In this filing petitioner criticized the methodology and conclusions of the court-appointed experts; asserted his continued need for a mental health expert as his own criticisms of the report were“by necessity limited[;]” again asked the court to rule on his outstanding motions for funds and appointment of counsel; and requested a competency hearing. Petitioner also argued, as a more general matter, that the process he had received thus far failed to comply with Art. 46.05 and the procedural mandates set by Ford.

The court, in response, closed the case. On May 26, it released a short order identifying the report submitted by the court-appointed experts and explaining that “[b]ased on the aforesaid doctors’ reports, the Court finds that [petitioner] has failed to show, by a preponderance of the evidence, that he is incompetent to be executed.” The order made no mention of petitioner’s motions or other filings.[6]

Kennedy summarized his view:

The state court refused to transcribe its proceedings, notwithstanding the multiple motions petitioner filed requesting this process. To the extent a more complete record may have put some of the court’s actions in a more favorable light, this only constitutes further evidence of the inadequacy of the proceedings. Based on the materials available to this Court, it appears the state court on repeated occasions conveyed information to petitioner’s counsel that turned out not to be true; provided at least one significant update to the State without providing the same notice to petitioner; and failed in general to keep petitioner informed as to the opportunity, if any, he would have to present his case. There is also a strong argument the court violated state law by failing to provide a competency hearing.[7]

The Supreme Court, via Kennedy, held, "The state court failed to provide petitioner with a constitutionally adequate opportunity to be heard."[8]

That Panetti was being set up by a Texas judge to be executed was confirmed by Justice Clarence Thomas, who in dissent described Judge Ables's actions during the state competency proceeding as merely "humor[ing] the Federal District Court," which had granted the stay specifically to allow the state court to consider Panetti's incompetency claim.[9] Unbelievably--and with a wink that only a conservative who knows just enough to think he knows everything can give--Justice Thomas (joined by the Court's three other conservative ideologues) made this characterization of the state court approvingly. That four Supreme Court Justices would approve of a state trial court "humoring" a federal district court in a matter as serious as a man's sanity to be executed speaks volumes about the utter lack of respect the four ideologues have not only for the rights of American citizens but even the federal courts themselves. It must be wondered how anyone can ever again take seriously anything they write as federal judges. Are we, too, merely to "humor" them when they rule?

1. Brief for Petitioner, Panetti v. Quarterman at 8.
2. Id. at 8 n.6
3. Panetti v. Quarterman, slip op. at 3.
4. Brief for Petitioner at 11-14.
5. Id. at 16.
6. Panetti at 5-8.
7. Id. at 17-18.
8. Id. at 19.
9. Panetti v. Quarterman, slip op. at 10 n.7 (Thomas, J., dissenting).

Deconstructing Clarence Thomas

Clarence Thomas wrote a concurring opinion in the Supreme Court's decision yesterday on the government's power to punish persons who attend public schools and whose speech can be interpreted as advocating illegal drug usage (Morse v. Frederick, available here). In it, he expressed his belief that the government, in the form of schools, is not constrained by the First Amendment's speech clause: "In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." (And again later: "As originally understood, the Constitution does not afford students a right to free speech in public schools." For the moment, we'll just put aside Thomas's misreading of the First Amendment, which does not "afford" "rights" to citizens, but affirmatively strips the government of power: "Congress shall make no law ... abridging the freedom of speech....") He also revealed quite a bit about his own values.

Laboring under the quixotic and never-explained hypothesis that the First Amendment's meaning is controlled by how public schools were organized and run in the 1800's, Thomas's opinion harkens back to America's better days, when teachers could beat children on behalf of their parents and, of course, blacks were kept under lock and key. He cites approvingly such emminent treatises as A. Potter & G. Emerson's The School and the Schoolmaster: A Manual (1843) for the proposition that "[b]y its discipline it contributes, insensibly, to generate a spirit of subordination to lawful authority, a power of self-control, and a habit of postponing present indulgence to a greater future good . . .” Insensible generation of a spirit of subordination to lawful authority?? Seriously, Justice Thomas? More on Thomas's apparent love affair with physical discipline of the poor:

During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. Public schooling arose, in part, as a way to educate those too poor to afford private schools. Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control.

Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong. Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience.

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order. [Citations have been omitted.]

Thomas's endorsement of the use of force as a means of "persuasion" evokes the fascist Capitan Vidal character in Guillermo del Toro's Pan's Labyrinth. Thomas's loathing of critical thinkers and those unlikely to obey, as the good doctor in the film puts it, for the sake of obeying, oozes from his pen. His fawning over the notion of "insensible generation of subordination to authority" is disturbing, to say the very least.

Thomas moved on to explain how the courts historically permitted this physical and mental abuse of children, invoking the acceptance of the common law doctrine of in loco parentis: "Through the legal doctrine of in loco parentis, courts upheld the right of schools to discipline students, to enforce rules, and to maintain order." He notices that this doctrine "allowed schools to regulate student speech as well" and cites a plethora of mid-nineteenth century state court cases applying the doctrine: Sheehan v. Sturges, 53 Conn. 481, 483–484, 2 A. 841, 842 (1885); Patterson v. Nutter, 78 Me. 509, 511, 7 A. 273, 274 (1886); Lander v. Seaver, 32 Vt. 114, 115 (1859); Wooster v. Sunderland, 27 Cal. App. 51, 52, 148 P. 959, (1915); Deskins v. Gose, 85 Mo. 485, 487, 488 (1885); Vanvactor v. State, 113 Ind. 276, 281, 15 N. E. 341, 343 (1888). Thomas summarized his constitutional "argument" in a nutshell:

In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respectfrom students. And courts routinely deferred to schools’ authority to make rules and to discipline students forviolating those rules.

Par for the course, Thomas never explains why he believes the historical application of this common law doctrine in cases where the First Amendment was never invoked must now prevail over the U.S. Constitution itself in a case in which a citizen has claimed its protection. He does unceremoniously deign to drop a footnote (1) in his opinion noting, "Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded." But, per the usual, this explains nothing at all, for there is no indication those guarantees were claimed by the litigants in the cases he relies upon, and, even if they were, Thomas refuses to explain how a state court's interpretation of a state constitutional provision sheds any light on what the First Amendment to the United States Constitution means. Thomas's silence is unsurprising, I suppose, since there is no connection at all. Boiled to its essence, Thomas believes the First Amendment is inapplicable in a public school because, historically, courts have never applied it when it was never invoked. Of course, to get there, he has to skip over all the more recent cases where it was invoked, and in which it was accordingly applied, notwithstanding, of course, in loco parentis.

So if the First Amendment does not provide any restraint on the government when it takes the form of a school, what, then, could be a possible remedy for those parents who do not wish the government to have such raw and unchecked power over their children? Thomas explains:

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal. 293 U.S. 245, 262 (1934) (“California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course …”); id., at 266 (Cardozo, J., concurring). If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

The conservative ideologues--and particularly Thomas and Scalia--demand quite frequently when they rule against a citizen and in favor of the State that the citizen take the matter up through the political process, which in the end constitutes a mere ignoring of the constitutional responsibilities of the government. But this principle doesn't apply universally, of course--not when you're an outcome-oriented ideologue. For if a public school chooses to enact remedial racial preferences to help reverse centuries-long discrimination that negatively affect whites, then ... then, the answer is not the political process but the Constitution, which forbids racial discrimination (even though the "original understanding" of the 14th Amendment did not prohibit schools from selecting students based upon race, as is evident by the long history of segregation during and following its passage, even in the Washington, D.C., school districts, which were directly under the Congress's control). Witness: "In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause." (Grutter v. Bollinger, 539 U.S. 306 (2003).) What a difference a day makes!

To be fair to Thomas, he did not in Morse completely ignore the modern Supreme Court decisions applying the First Amendment in the public school context. He briefly mentions those cases, only to say that they do not form a coherent test. He never explains why those decision do not in any event bind him, but I suppose when you are the "lawful authority" and you expect that what you say "goes," you can stand to be a little light on explanation. After all, he need not rely "solely on the power of ideas to persuade." As the "lawful authority," I suppose that he expects to have other, less idea-y, means of persuasion at his disposal.

Incidentally, not even Scalia joined Thomas on this ride.

No Bong Hits 4 You!

The fanatic five delivered a couple of First Amendment opinions today, in both cases ruling in favor of the government and against American citizens requesting that it respect their liberty. In one, per Chief Justice Roberts joined by the Court's four other conservatives, the Court ruled bluntly that the government may punish a person who attends the school for any speech "that can reasonably be regarded as encouraging illegal drug use." The opinion is Morse v. Frederick and may be found on the Court's website here.

In 2002, Joseph Frederick was a senior at a public high school in Juneau, Alaska. That year, the Olympic Torch procession passed through town and right down the road on which his school was located. The principal of his high school decided to allow the students to attend the procession, supervised by teachers. But Frederick himself hadn't gone to school that day. Apparently, he instead spent the morning working on a banner that read, "BONG HiTS 4 Jesus." Frederick arrived at the procession as it approached the school and took up a position across the street, joined by several friends. (Most students stood on the other side of the street, nearer the school.) As the procession passed, the banner was unfurled, and he and several others held it up, attempting to gain the attention of television cameras. For this Frederick was suspended from school. Alleging a violation of his free speech rights, Frederick sued, culminating in the Supreme Court's opinion that the government had the right to punish him for his speech.

The decision works a pretty large expansion in the power of the government to punish citizens for speech. Not only does it bestow upon schools the authority to punish any student who advocates political points of view in favor of drug legalization or drug usage, but it also refuses to limit its reach to circumstances where the student is actually in the school's custody or at a school-organized event, such as a football game.

As is typical of the new conservatives, the majority opinion is irrational, ends-oriented, and, ultimately, disingenuous. To begin with, the majority treats Frederick's speech as if he were at school when it was made, and thus under the less rigorous (though far from weak) First Amendment protections afforded to students at school under prior precedent:

At the outset, we reject Frederick’s argument that this is not a school speech case.... The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22–23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. For Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id., at 63a.

For my part, I fail to see why Frederick may not claim he was not at school under these circumstances. This was not a school-organized football game or dance. It was the Olympic Torch procession, a very public--parade-like--affair that was not organized by the school nor attendance limited to students. (Indeed, the school would have had no authority to exclude any member of the public from the event, despite the majority's repeated (mis)characterization of the function as a "school event.") That the school "sanctioned" the affair, and allowed the students then in its custody and care to attend under its supervision, does not thereby make every member of the public in attendance "at school," even if that person normally attends the school. This aside, Roberts also had to misrepresent Frederick's actions even to make this feeble defense of school authority. Frederick did not "stand in the midst of his fellow students" at all. He stood across the street from the school and away from most all students. (Roberts seems to have noticed no tension in his statements both that Frederick stood "in the midst of his fellow students" and that he "directed his banner [across the street] toward the school, making it plainly visible to most students.") And certainly, the fact that the band and cheerleaders performed on the side of a public road that he happened to be on does not make him at school. I myself in high school attended a professional basketball game during which the high school dance squad performed at half-time. I did not consider myself to be at school, nor subject to its authority, by virtue of this fact. Of course, making Frederick be "at school" was a necessary precondition to upholding the government in the case. Had he not been "at school," it was uncontested that his speech would have been absolutely protected and unpunishable by the government.

In another ends-oriented endeavor, the majority hilariously stumbled its way to a conclusion about the meaning of Frederick's message. Although the dissent (and Frederick himself) characterized his banner as humorous nonsense, the majority found in it instead a message "promoting illegal drug use":

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. ... The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.”

Absent this finding, the speech would not have been punishable, as it would not have negatively affected "the governmental interest in stopping student drug abuse," the factor that in the majority's view justified the school in circumscribing Frederick's free speech rights. (Notice that Jesus disappears entirely when one is forced to interpret the message seriously as advocacy or celebration of drug use. Jesus can sensibly remain only when Frederick's explanation of the message as nonsense is accepted.) But more troubling--or at least most illogical--is the conservative majority's apparent inability to recognize political speech even when they've just found it. One paragraph after the above quoted text, Roberts wrote:

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14–16, this is plainly not a case about political debate over the criminalization of drug use or possession.

What's disingenuous here is the majority's reliance on Frederick after already rejecting his own expressed intent. This catch-22 could have come straight from Joseph Heller: Frederick's banner is not "meaningless and funny" like he said but instead "advocates" drug use. But his banner does not advocate a political message because Frederick says it is meaningless. It is anything but clear to me how advocating illegal drug use--if one is inclined to conclude that is what he was doing--is not political speech. But this emphasizes the conservatives' dilemma in this case. They knew what result they wanted (government wins against citizen), but getting to that result required two contradictory findings along the way: (1) Frederick's banner was not meaningless (so as to enable it to invoke the government's interest in regulating student speech regarding drug use); and (2) Frederick's banner was meaningless (so as to remove the speech from the highly protected category of political speech implicated in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, which came out in favor of the students). So they did it, because they can.

So now not only does the Fourth Amendment disappear from the relentless pounding of the war on drugs, but so, too, does the First Amendment begin to erode.

Timely Appeal

Since Reagan's presidency, the federal judiciary has become increasingly conservative, ideological, and outcome-oriented--in favor of business as against consumers; employers as against employees; the government as against citizens; the government as against criminal defendants and appellants; and even (amazingly) corporations as against investors. At the top of the federal judiciary--the Supreme Court--the trend began with the nomination by Reagan and appointment by a Democratic-controlled Senate of Antonin Scalia. Conservative ideologue Clarence Thomas was sent to the Court--also via a Democratic-controlled Congress--by the first President Bush in 1991. With the confirmations of two more conservative ideologues in Chief Justice John Roberts and Justice Samuel Alito in 2005 and 2006, respectively, the high Court has never in the last 80 years been as conservative. And in the short time in which they have had control, these four ideologues--aided by conservative Justice Kennedy (appointed by Reagan)--have the abandoned precedent to show for it. The end game is turn back the constitutional clock to the 1920's and even before. (For Scalia, in particular, it means turning it back to 1787, with the exception of the executive branch, for which strict construction and original intent have no apparent purchase.)

For lay persons, it is often difficult or even impossible to ferret out when a court of law is pulling a fast one or acting outside the bounds of established law. This is because judges and lawyers (the good ones, at least) are skilled in the art of making what does not fit appear to look like it does. Thus, an opinion that marks a sharp divergence from the law will be couched in language as though it were a natural extension of it, or even compelled by it. Absent any background, a lay person will easily find himself or herself reading a majority opinion and plainly understanding its reasoning and how it fits with the descriptions of the cited cases and then moving on to the dissenting opinion and feeling the exact same way about it. Although there are occassions in law where precedent and the facts at hand are such that cases plausibly may be made either way, one side is, more often than one would care to see, actually misrepresenting or mischaracterizing the facts or prior legal principles, or making persuasive-sounding--but ultimately empty and vapid--distinctions that allow them to reach a desired legal conclusion. (The jurisprudential notion that judges do not so much as interpret law as massage it to get where they want to go is called "legal realism," and most lawyers--and judges--are adherents, even if they deny they are.)

Timely Appeal will not be limited to the Supreme Court. In almost all instances, the federal courts of appeal are the real courts of last resort for most litigants, and the same trend that has occurred at the top has occurred in the lower federal courts and in state courts, albeit even faster and more radically. Here we hope to pierce the legal shield through which political operatives cloaked in black robes operate to deny you justice, on whatever bench they sit. Timely Appeal is an appeal to you to do something about it. We do not claim to know what, but anything from voting for a Democrat for President to a people's revolution sounds good to us. The choice is yours.