Chief Justice John Roberts joined the Supreme Court with the goal of bridging the divide over state/federal arguments and promoting unanimity of opinion. However, former independent counsel Ken Starr said in a lecture last April that his goal has not been realized because of an unexpected alliance between justices Kennedy and Alito, both of whom believe the federal government should have more power than the states.
During his talk sponsored by the Penn Law Federalist Society, Starr used a free speech case as an example.
In the case, a high school principal in Alaska suspended a student after he unfurled a banner across the street from the school that read “Bong Hits 4 Jesus.” The student sued the school board for violating his right to free speech. Starr represented the school board.
Writing for the majority, Justice Roberts argued that school officials could limit speech that promotes the use of illegal drugs. Even though justices Alito and Kennedy joined Roberts in his opinion, they “sounded a nationalist alarm,” said Starr. The justices, he said, expressed concern about the school board’s “breadth of discretion,” and worried that other school boards might abuse their authority and endanger students’ free speech rights.
Starr said although unanimity remains elusive on the Court, Roberts tends to prevail in the split decisions. He said the justices usually take predictable positions, but Kennedy is often the centrist, or swing vote, and determines the outcome.
“This is, for now, the Kennedy Court,” he said.