Arkes With Alito

Eight of the Supremes reluctantly decided that the cult that protests soldier funerals has the right to do so. Only Sam Alito thinks not. Hadley Arkes explains why he's right.

Far more telling for our jurisprudence is that the case marked the full drift of conservatives on the Court to settle in with the revolution begun nearly forty years ago, with Cohen v. California, to install moral relativism as the anchoring premise in the laws governing speech, and to overturn dramatically the ethic governing speech and civility in public places. It was in the Cohen case that Justice John Harlan wrote the line that would form the signature tune for the judges from that day forward: “One man’s vulgarity, another’s lyric.” Harlan would receive vast credit for a novel breakthrough in the law, for discovering the doctrines of “logical positivism” long after they had been discredited in the schools of philosophy: Moral words, casting praise and blame, pronouncing on the things that were right or wrong, just or unjust, had no cognitive content or objective meaning. They were essentially emotive; they expressed passions, which could not be judged true or false. 

RTWT. It's a nice piece of judicial history, and also makes the point that we keep moaning about civility at the same time we keep creating policies that make civility impossible.