Justice Thomas’s position in Morse v. Hein, the “Bong Hits 4 Jesus” case, seems to me the most compelling. That position, to use words he doesn’t, is essentially that when the First Amendment bars Congress from limiting free speech, it isn’t saying anything about local public schools. (That’s the key difference, in my mind, between this case and the McCain-Feingold case, where you have congressional action and, indeed, congressional action that requires the cooperation of the federal judiciary to take effect.) If you assume that the amendment does have something to say about public schools, the way Thomas’s four colleagues in the majority do, then it is much harder to deny protection to the student’s sign. So I think that the critics of Chief Justice John Roberts and Justices Kennedy, Alito, and Scalia have a point.

And then there’s Dahlia Lithwick .

In Morse, Roberts goes to great lengths to insert meaning into the silliness of the words on the student banner. He insists the phrase “Bong Hits 4 Jesus” can be read as “celebrating drug use”; indeed to get there he needed only insert the imaginary words, “bong hits [are a good thing].” When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say “bong hits [will kill you].”

Does this seem plausible to anyone?