Monday, March 16, 2009

Restricted speech

Posted By on Mon, Mar 16, 2009 at 4:51 PM

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The full ballroom at the Boise Centre on the Grove, usually a pedestrian affair, was austerely appointed in ceiling to floor black cloth on Thursday night. The University of Idaho College of Law, celebrating its first centennial, projected a dramatic pair of school logos on the black backdrops. A long, raised dais loomed over the front of the hall, lined north to south with chairs and referred to as the Head Table.

The large crowd of fresh-faced U of I alumni, left- and right-leaning Boise lawyers and state dignitaries picked at their fruit course while somewhere behind the stage an elite group of Idaho politicos mingled in The Perch room with John G. Roberts, U.S. Supreme Court chief justice, sans robes.

The beslinged governor, C. L. “Butch” Otter (recovering from a calf roping injury) introduced the boyish Roberts to Idaho’s portly Secretary of State, one Ben Ysursa.

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“I know that name,” Roberts responded, according to Ysursa. (Reporters were not allowed anywhere near the Chief.)

Ysursa, of Basque heritage, does not have a very common family name.

About two weeks prior, Roberts had handed down a bittersweet victory to the State of Idaho in the case of Ysursa, Secretary of State of Idaho, et al v. Pocatello Education Association et al.

“We won the case, but we lost most of the law,” Ysursa commented after the gala, heading across Boise’s Grove Plaza on his way back to his silver Benz. (Ysursa’s Democratic-leaning relations in the Midwest were none too happy that their Idaho brother was taking on the unions.)

Roberts ruled that the state can prohibit school districts, fire departments and other political subdivisions from taking contributions to union political funds directly out of public employees’ paychecks.

“Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities,” Roberts wrote in the 6-3 decision.

Idaho Lt. Gov. Brad Little, who carried the 2003 Voluntary Contributions Act—the target of the Supreme Court ruling six years later—also chatted with Roberts in The Perch. The Chief Justice reportedly complained to Little that the Ysursa decision required a lot of work on his part.

Roberts’ speech in Boise, a prelude to a Friday lecture at the law school in Moscow, for which he was paid an $11,500 honorarium, did not take nearly as much work. The nation’s top jurist spoke for about seven minutes, opening with a lawyer joke about not telling lawyer jokes and recounting the journey to the American West for this western audience: Explorers, trappers, miners, ranchers and farmers.

“Each of these groups made their initial appearance without the assistance of counsel, but the lawyers were, of course, not far behind,” Roberts intoned. “Idahoans have a well earned reputation for self-sufficiency.”

Roberts tipped his hat to federalism, invoking New Deal-era Justice Louis Brandeis’ notion of states as laboratories for experimentation, and gave a nod to Western American jurisprudence, which informs his conservative rulings on natural resources.

“My court’s cases recognize, the pioneers who were drawn to these lands found a climate and topography radically different from that east of the 100th meridian,” he said.

Roberts also quizzed the audience on the name of the chief justice a century ago when the College of Law was founded. None could recall the name Melville Fuller.

Ironically, had Roberts been the speaker at the Republican State Convention last June, he might have found a more knowledgeable crowd; Fuller ruled portions of the federal income tax unconstitutional in 1895, a popular position among one segment of the state GOP.

College of Law Dean Donald L. Burnett, Jr. also invoked Justice Brandeis’ vision of a great university in thanking Roberts, saying that an institution—like Idaho’s only law school—that aims high and broad can inspire great loyalty.

Then Burnett, perhaps subconsciously, spoke to the difference between Roberts’ jurisprudence and that of the more scholarly justices.

Idaho’s law community gathered that Thursday night, Burnett said, as “a great manifestation of the impulse for justice, whether it’s the common sense justice described by the Chief Justice and Idaho’s history, or the scholarly justice that the Supreme Court is charged to produce for us, year in and year out.”

Hundreds of common sense lawyers arm in arm with their dates, flooded out into the daylight savings time twilight.

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