Even When Roy Moore Is Right, He’s Wrong
Here’s his latest column.
First, he is dead right that the recent Ninth Circuit case Harper v. Poway Unified School District is a really, really, really bad decision.
Basically, the court held that a local school was allowed to prohibit a student from wearing a t-shirt because the message on the shirt might have caused other students “to question their self-worth and their rightful place in society.”
What was the message, you ask? It should not matter, like I said here, schools ought have no power whatsoever to regulate the content of student speech absent some concrete disruption. But if you must know, it was this:
Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL” handwritten on the back.
Anyone who reads this blog knows that my views on homosexuality are about as far from Roy Moore’s as can be. But I agree with him that in this case the school acted unconstitutionally. The possibility of psychological harm does not justify eliminating free speech.
So how is he wrong? Two ways.
First, according to his disciples, he’s wrong to suggest that the school acted unconstitutionally. Here’s Roy’s take (emphasis added):
Obviously, the liberal judges on the court cared little for traditional rights of free speech
And here’s a statement by his underlings on the Roy Moore Blog. Speaking about the “Bong Hits 4 Jesus” case (in which a principal disciplined a student for waiving a banner with those words on it) the mini-Moores say (emphasis added):
If one follows the original interpretation of the Free Speech Clause, there is no need to side with Frederick in this case. The clause states, in pertinent part: “Congress shall make no law . . . abridging the freedom of speech.” Take the analysis a step at a time. In the first place, the government actor involved here is not “Congress,” but rather a local school administrator. Thus, from a traditional standpoint, the First Amendment has no application in this case.
So which is it guys? Does the first amendment apply to schools, or not? Or does it apply when kids want to condemn gay students, but not when kids want to question drug policies?
Second, he is wrong about the Ninth Circuit. Moore uses the Harper case for a broader argument:
The United States Supreme Court properly vacated their opinion, which is nothing new for the high court, as it has reversed all eight of the other 9th Circuit cases that have come before it this term, an appalling reversal record for any circuit court of appeals. Since 1978, no other circuit court of appeals has had more decisions overturned. In the 1995-96 term of the Supreme Court, 27 of 28 cases from the 9th Circuit were reversed, and in the 2003-04 term, 19 of 25 cases were reversed, most by unanimous decision of all nine justices of the Supreme Court. . . .
The solution to the problem is simple. Rather than burden our high court with wrong decisions by the 9th Circuit Court of Appeals, Congress has the authority to abolish that court altogether and create a new court in its place or divide the circuit into two smaller circuits, thus reducing the reach of its radical decisions. In the alternative, Congress can impeach a few judges for their irresponsibility, holding them accountable for their wayward rulings. Our respect for law and reverence for the Constitution demand that we no longer tolerate the behavior of the judges of the 9th Circuit!
For starters, I can’t be the only person scratching my head trying to figure why Roy Moore – Scotus basher extrodinaire – now thinks an appellate court’s worth depends on how often that court pleases Scotus.
More to the point, if the problem is burdening the high court with wrong decisions, then congress is going to have to get rid of much more than just the Ninth Circuit.
It is probably accurate that the Ninth is reversed more than any other court. But that is because it covers a much bigger area than any other court. Hence, more cases to appeal. So the real question is how the reversal percentage of Ninth cases taken by Scotus compares to other jurisdictions.
Roy is correct that in 03-04, Scotus reversed 19 of twenty five Ninth cases, or 76%. What he does not tell his readers is that the average for all the circuit courts in that same year was . . . 77%.
Roy is also correct that the Ninth had a few bad years in the mid-nineties. But consider the long view.
Over the last fifty years, Scotus reversed 57% of Ninth Circuit cases. For comparison’s sake, the Eight’s rate is 55%; the Fifth, Sixth, and Tenth are at 56%; D.C is 62% and none are below 46%. That’s just federal cases. 25 states have a higher reversal rate, among them Alabama, Mississippi, Georgia, Louisiana, and Texas. In fact, the state average is the same as the Ninth Circuit’s: 57%.
Things don’t change much when the period of comparison is the last 12 years. The Ninth, at 61%, comes in behind the Second, at 62%, while 16 states have higher reversal rates.
In short, with the exception of a few crazy years in the mid-nineties, the Ninth gets reversed at a perfectly normal rate. There may be reasons to split the Ninth, but the reversal rate is not one of them.