Arvanitakis and McConnell on American politics: SCOTUS

| July 3, 2021

One of the forgotten controversies leading up to the 2020 election was the decision by then president, Donald Trump, to nominate Judge Amy Coney Barrett to the Supreme Court.

Given that a Republican-controlled Senate denied President Obama’s nominee Merrick Garland a confirmation vote – and thus any chance of reaching the high court – the Democrats were incensed that the Republicans broke the rules they set themselves.

With the appointment of Brett Kavanaugh in 2018, the appointment of Coney Barret gave the Republicans what they have long wanted: a Supreme Court conservative majority.

This all resulted in calls for Joe Biden, if elected, to ‘pack the Supreme Court.’ That is, to add additional judges to re-balance the Court to create a progressive majority. Yes, in theory this is possible as the Constitution does not set the number of justices on the Court. Congress can change the number by passing an act that is then signed by the president.

With all the controversies that have occurred since then, threats to ‘pack’ the Court seem all but forgotten. Yet, a recent judgement involving an angry Pennsylvania cheerleader has, however, brought the Supreme Court of the United States (or SCOTUS) back into focus and with it perceptions of the ideological makeup of the Court.

Why the ‘salty’ cheerleader case is no joke

The background is quite simple but the case quite complicated. A young teenage cheerleader, Brandi Levy, posted a profanity filled rant via Snapchat in May 2017, two days after an unsuccessful tryout.

In that year, Levy (then aged 14) posted a photo of her and a friend raising their middle fingers to the school with a caption using the same curse word four times to voice her displeasure with cheerleading, her school and ‘everything.’ Her photo was visible for 24 hours on Snapchat, along with another post questioning another girl’s selection to the varsity squad.

As punishment, Mahanoy Area High School coaches kicked her off the cheerleading squad for a year.

The case became closely watched because it was a test case for online free speech rights. The question became to what extent can a public school regulate student behaviour, online and off-campus? This all fits within the broader American debate over the proper relationship between the people and government: where should the line be drawn?

More broadly then, this is seen as a battlefield within the broader conflict over where self-determination ends, and government sovereignty begins. This conflict plays out in other battlefields also: religious practice, healthcare, voting, immigration, security, property ownership and so on.

What was the outcome?

This all came to the Supreme Court’s attention because there has long been a split among the federal Circuit Courts of Appeals (which are intermediary appellate courts) on where this line should be drawn. While some of the Circuit Courts have consistently held that schools have no jurisdiction over student speech online absent from some use of school-owned technology, others have disagreed.

The Circuit Courts that have supported Schools limiting expression online have applied what is known as a ‘nexus’ test. That is, schools might have the authority to restrict student speech online if a sufficient nexus exists to entangle the school via an array of factors including:

  1. Where was the post made: on campus or off?
  2. Where was the post consumed: on campus or off?
  3. Who was the post directed at: school community or no?
  4. Was there a significant disruption caused at the school by the post: yes, or no?

While the Supreme Court justices preserved the authority of public schools to ‘sometimes’ regulate speech away from campus, they ruled 8-1 that the punishment that Mahanoy Area School District officials gave Levy for her social media post violated her free speech rights under the US Constitution’s First Amendment.

Importantly, however, it did not give free speech protection to everything: the boundary drawn does not protect individuals or groups from posts that are threatening, intimidating, or bullying. As such, there is some off-campus speech that warrants a school’s intervention, but a would-be cheerleader’s ‘salty’ rant isn’t it.

In summary then, while SCOTUS acknowledged the circumstances used in the ‘nexus’ approach might legitimately authorise a school to regulate off-campus speech, they found the circumstances surrounding the cheerleader’s suspension did not rise to the level necessary to justify a school’s regulation of off-campus student speech.

This is what Justice Breyer touched on when noting the tension between the private lives of citizens and the proper role of government in his acknowledgment that traditionally student behaviour off-campus is not the responsibility of the school but instead that student’s parents.

And what about SCOTUS?

There is no doubt in the USA that everything is partisan. Despite this, and all the grumbling from grandstanding politicians (from both parties) and parts of the media that ‘court packing’ is necessary to ‘correct’ a conservative/liberal tilt, there is little evidence that SCOTUS is making decisions based on one bias or the other.

In fact, in the overwhelming number of cases SCOTUS decides, something like 80 percent each year, are decided by overwhelming majorities (9-0, 8-1, 7-2) not on narrow ideological splits.

The was evidenced in the ruling in the cheerleader case: 8-1.

What we have here is the discrepancy between votes is on actual opinions, which is at incredibly high levels of agreement among the justices), rather than the constructed narrative of ‘deep ideological division’ which is the common-held narrative. This may be because news covers topics that are sensational, whereas the Court’s docket is commonly filled with cases that are technical to the point of being arcane.

We don’t know what the future holds particularly with wedge issues such as a women’s right to choose or gun rights, but the evidence indicates a debate on interpretations of the arguments made, not one on personal bias.

Nevertheless, some evidence of an ideological split emerged just this week when the Supreme Court struck down a challenge to the Arizona Voting Restrictions Law, with justices splitting 6-3 along partisan lines.  Court-packing advocates will no doubt seize on developments like this as justification for their cause.

It prompts the question, however, if the topics on which the Court divides are of such import to justify stacking its membership to all but guarantee a particular outcome?

This article was written by Professor James Arvanitakis, the Executive Director of the Australian American Fulbright Commission; and Assistant Professor Jason McConnell of Wyoming University.