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Sunday, June 04, 2006 

Why We Fight

In his column in the Washington Post, George Will discusses the recent 5-4 decision from the Supreme Court in the Garcetti v Ceballos case...
Last Tuesday Justice Anthony Kennedy, writing for the court and joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, noted that the court has held that government "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." But the Ceballos case was not about conditioning employment; it was about whether government employees are constitutionally exempt from discipline related to speech made in the conduct of their official duties.
Will examines the view of the lower court in the 9th Circuit, then compares it to the differing result reached by the majority on the Court...
By ignoring the question of whether an employee was or was not speaking "as a citizen," the 9th Circuit's approach would, Kennedy wrote, produce a huge "displacement of managerial discretion by judicial supervision." It would "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business," a flood of "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers."
Will then wraps things up nicely with this point...
Ceballos's case was originally argued after Justice Sandra Day O'Connor announced her retirement but before she was replaced by Alito. It was then reargued, which suggests that without Alito the court was split 4 to 4. If so, the addition of Alito enabled the court to prevent the 9th Circuit's approach from pulling the nation's courts even more deeply than they already are into supervising American life.

What were the Roberts and Alito confirmation battles about? That.
And that is why we fight so strongly over judges.

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