Amanda Harmon Cooley (South Texas College of Law Houston) has posted Subjugating Liberty on SSRN. Here is the abstract:
Constitutional conflicts are central to the Supreme Court’s jurisprudence. In reaffirming the principle of judicial review established in Marbury v. Madison, the Justices have consistently emphasized the need for principled decision-making to fulfill the Court’s Article III role as the ultimate interpreter of the Constitution in resolving such disputes. In line with these principles of resolution, the Court has traditionally exercised the avoidance doctrine as a form of judicial restraint, aiming to prevent decisions that escalate constitutional conflicts and to ease tensions caused by unelected judiciary overreach. Indeed, the Roberts Court has underscored that the purpose of judicial restraint is to seek harmony, not to create conflict. However, contrary to these ideals of reason, resolution, and restraint, the 2020s have seen the conservative supermajority of the current Court increasingly prioritize value judgments in its assessment of constitutional liberty in a broadly destructive manner. Coupled with a voracious intent to abandon stare decisis, this preferentialism has led to a range of deleterious consequences. The most insidious examples of the Court’s broad privileging of certain constitutional rights over others have arisen in cases that directly impact the essential situses for participation in American democracy—its public schools. In cases like Kennedy v. Bremerton School District, Mahmoud v. Taylor, and Mirabelli v. Bonta, the Court has weaponized adult free exercise rights and aggrandized parental substantive due process liberties in these “nurseries of democracy,” effectively erasing nearly any notion from Tinker that students have real First Amendment freedoms within schools. This unnecessary clash of constitutional rights is inculcating American schoolchildren with their own suppression. Here, the lessons of constitutional collisions are simple. When assessing students’ constitutional personhood in the context of broadly construed competing considerations, adults’ liberty is exhaustively subjugating. This has created a zero-sum jurisprudence in which students will always lose.