First Amendment 0 - 2 This Week at the High Court

The Supreme Court denied certiorari to McComb v. Crehan and Harjo v. Pro-Football, Inc on Monday and Tuesday, respectively. When the Supreme Court does not hear a case, it reaffirms the decision of the lower courts in that case.

The first case was an appeal by Brittany McComb of Nevada, who argued her First Amendment rights had been violated when her high school turned off her microphone when she began to preach Christianity during her 2006 graduation speech. The Colorado court sided with the county’s school officials.

The justices also declined to hear arguments in a case about the Washington Redskins name (and logo), which Native American activists considered offensive. The Court was asked to decide not on the offensiveness of the name but on the timing of the petitioners’ claim. The U.S. Court of Appeals for the District of Columbia said that the eight years that had passed were too long to wait to file the claim in court. The Court’s denial ends a twenty year legal struggle over the football team’s name.

These two cases are an example the “Casablanca Test” – acting righteously in a moment of crisis. (If you don’t get the reference, go rent Casablanca from Netflix.) The Court historically has failed this test, proving to protect rights in small ways and at times that it matters the least. This is, of course, not always true, but landmark cases like Brown v. Board of Education (1954) are the exception and not the rule.

This week, the Court encountered the Casablanca Test twice. Neither of these cases, had the Court heard them, would have become landmark decisions. Yet the justices did not grant certiorari to two groups (a minority group whose culture had been insulted and a student whose rights had been violated) who appealed to them to hear their cases. So, they did not act righteously in a time of non-crisis.

Perhaps if they had heard the cases it would be easier to tell if the Court passed or failed the Casablanca Test. (If you pass it by acting righteously in a time of crisis, did the Court fail it this week by not acting in a time of non-crisis?) If it had decided in favor of either the Native American activists or the student, it would have been acting righteously in a time of non-crisis. Then again, would it not have been righteous if the Court had upheld the First Amendment, even in a time of non-crisis? We will never know now because the Court will not hear these two cases. It may not be a great loss for American constitutional scholarship, but it is certainly a loss for both Brittany McComb and the Native American activists.