By Adam Sanders

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Without a doubt, Supreme Court fights are nasty and have been increasingly so for decades. Clearly, the stakes are astronomically high with the Supreme Court. The justices only end their terms upon death or retirement, their decisions impact everyday life, and they are the only people that can strike down laws after the fact. While the U.S. Constitution has designed the high court to be apolitical, human nature has had other plans. Whether it was the Anita Hill controversy in 1991, Merrick Garland’s blocked nomination in 2016, or the Kavanaugh brawl in 2018, the kids always play too rough, and someone starts crying.

What all of these dramatic episodes had in common were explicit attempts to politicize the judiciary. These attempts were obviously made with the assumption that it is possible to politicize the Supreme Court with relative ease. However, that assumption begs the question of whether it is actually that simple of an affair to politicize the judiciary. To that end, we can examine the great flurry of decisions the Supreme Court has rendered over the past few weeks. One can certainly find some decisions among them that split along ideological lines, but there are also cases among them with results that are quite surprising with regard to the vote breakdown.

The first major case decided recently that serves as an excellent example of a non-politicized case is Mahanoy Area School District v. B.L.[1] This 2021 case was decided with a resounding 8–1 vote, with Justices Clarence Thomas being the only dissenting vote. To oversimplify, the case arose when the plaintiff, B.L. failed to qualify for her school’s cheer leading squad. In frustration, B.L. logged onto her social media accounts and engaged in a vitriolic and profanity-infused tirade against the school and the cheer leading team.[2] Consequently, the school suspended B.L. for the rant, resulting in the former suing the latter. B.L. argued that her First Amendment right to free speech had been violated. Eventually, the case worked its way up to the Supreme Court. The inherent constitutional question at the heart of the case was whether the school had jurisdiction over what a student publicly expressed outside of the physical school and on the student’s own time.

Initial assumptions might lead one to think that the Conservative justices would back the school and the Liberal justices would support the students. Clearly, that outcome proved not to be the case in the event. To understand why the justices voted the way they did, we should break down their logic. Ultimately, there were five holdings of the Supreme Court in the case:[3]

1. B.L.’s post is entitled to First Amendment protection because, as speech criticizing a public institution’s official policy, it was exactly the type of speech that the First Amendment is designed to protect.

2. Since B.L. did not mention the name of the school, nor attack any individual by name, the school did not suffer any discernible harm from the speech, and thus had no cause or reasonable motivation to restrict it.

3. In Loco Parentis does not apply to students on their own time, nor had the school ever previously attempted to dissuade students from swearing or vulgarity outside of school hours.

4. The motivation for suspension was that the cheer leading team was mildly upset at the post, which is in no way a sufficient cause to suppress speech.

5. B.L.’s rant had no impact on the cheer leading team apart from hurt feelings.

For the sake of clarity, In Loco Parentis (in place of parents) is a legal doctrine that essentially states that schools are legally permitted to act as surrogate parents for the minors under their watch during the school day. However, as per the third holding, that did not apply in B.L.’s case.

The majority opinion of Justices Sotomayor, Kagan, Barrett, Kavanaugh, Breyer, and Chief Justice Roberts resulted in the aforementioned holding.[4] Justices Alito and Gorsuch filed a concurring opinion (i.e., an agreement with the majority opinion, but for different reasons). Their opinion was focused more narrowly, explicitly agreeing only with the First and Third holdings, respectively. With regards to Justice Thomas’s dissenting opinion, he focused on specific details regarding the In Loco Parentis doctrine.

In Thomas’s argument, he does concede that a school’s powers under In Loco Parentis do not unequivocally apply off campus, but he does insist that there are factors the majority is not taking into consideration. Firstly, Justice Thomas claimed that the court was disregarding precedent well-established by nearly 150 years of case law. Specifically, Thomas argued that in the previous case law (which I will not elaborate on too much, since that could be its own blog), the standard precedent was that if a minor verbally disparaged a school and/or teacher, then the school could discipline the student, even if the speech occurred in the student’s personal time. The logic behind this standard, established in Lander v. Seaver (1859), was that if a student’s speech was inherently hostile, then it was intended to degrade the function of a school and its staff, and therefore was not protected by the First Amendment.[5] Thomas applied that logic to B.L.’s case by asserting that her speech was not protected criticism, but rather hostile as per Lander, and thus the school had the right to suppress it, established by the 1859 case.

This Supreme Court case is an example of how ideology and partisanship were not germane to the consideration of a decision. In this case, one could easily argue that this was because the constitutional question(s) at the heart of the case were fairly straightforward (specifically, issues involving the First Amendment and the doctrine of In Loco Parentis). One might also contend in opposition to that argument that this was not a particularly charged topic, and so there was no impetus for the Supreme Court to fall along ideological lines. However, one may respond to such a counter argument by asserting that, in contemporary America, anything can become charged or controversial at a moment’s notice a la Potato Head.

For the sake of addressing such an argument, we should consider a Supreme Court case that does deal with a more contentious issue. In this scenario, the Supreme Court case in question is Google LLC v. Oracle America, Inc. (2021), which represents a judicial battlefield involving Big Tech and intellectual property.[6] To make an extremely long and technical story short, Google was copying Java code without permission from the owner, Oracle America. Google insisted that this behavior did not violate copyright law, as Java was just being used as an interface with which Google’s coders could create new software, thus making it a form of fair use.[7] This would make Google’s actions similar to what parody artists do under fair use, albeit with far less humor. Alternatively, Oracle insisted that ownership was ownership, and Google did not have the right to use copied Java code without permission.

The court ruled 7–2, with the liberal justices siding with Trump’s court picks and Roberts on the one hand and Alito and Thomas dissenting on the other. There were a number of holdings that arose from the dispute:[8]

1. Java is not a single piece of intellectual property, but rather a cataloging system for code that does consist of self-contained pieces of intellectual property. In his writing of the majority opinion, Justice Breyer likened Java to the Dewey Decimal System, which can be used by anyone without permission.

2. Google was not merely ripping pieces of code to use as its actual product. Instead, Google was taking small pieces of Java code and using them to improve the functionality of its own smartphones, the intellectual rights to which Google already owned.

3. Java as a code has already become so pervasive in the coding world that it is virtually industry standards for most computing devices (including smartphones) to be compatible with Java a priori.

4. Allowing Oracle to have exclusive control of Java would create such a massive monopolistic control over what is essentially open-source hardware already would defeat the very purpose of intellectual property laws, namely, to foster market competitiveness.

Conversely, Justice Thomas (joined by Alito) argued against allowing Google fair use of Java. Thomas wrote that the Supreme Court had in its deliberations created an arbitrary distinction between “implementing code” (a single piece of intellectual property such as an app or a video game) and “declaring code” (such as Java or Apple’s app store). Thomas claimed that making such a distinction did not make sense, considering that current intellectual property laws did not make such a distinction themselves on the matter of what type of software is protected and what is not. Finally, Justice Thomas asserted that allowing declared code to be automatically fair use renders a copyright on declared code to be meaningless.

In conclusion, the two cases discussed above show how the Supreme Court can still have unpredictable voting results on both the individual and industry-level scale. In both cases, the expected ideological alignments did not occur as a passing glance at the justices might lead one to assume. There are two reasons for this. Firstly, the justices’ ideological leanings can manifest themselves in juridical worldviews that counterintuitively make sense with their political leanings. Secondly, at the end of the day, the law is the law, and the Constitution is the Constitution. Thus, the powerful intellectual culture of the legal intelligentsia at large as well as the esprit de corps of the judiciary at large result in its politicization being much more difficult in practice than in theory.

[1] B.L. a minor, by and through her father Lawrence Levy and her mother Betty Lou Levy v. Manahoy Area School District, 594 U.S.___ 2021.

[2] B.L. v. Manahoy Area School District, 594 U.S.___2021.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Google LLC. V. Oracle America, Inc. 593 U.S.__2021.

[7] Google v. Oracle America, 593 U.S. __2021.

[8] Ibid.

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