- Law Prof Takes Case to the Supreme Court (Harvard Crimson)
While Tribe said he sensed the justices were sympathetic to his Fifth Amendment argument, they were wary of creating new ways to sue government employees.
“There is a considerable amount of hostility for the possibility of opening up the floodgates of litigation against government officials,” Tribe said.
- Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights (Volokh Conspiracy)
For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for refusing to give the BLM an easement over his land would clearly be unconstitutional if used to punish him for exercising virtually any other constitutional right.
- PropertyProf Blog (noting the substantive due process aspects of the issues)
- Is Property Protected From Government Retaliation? (Volokh Conspiracy)
Morse v. Frederick, the "Bong Hits 4 Jesus" case, captured most of the media attention at the Supreme Court yesterday. The other case on the Court's Monday docket, Wilkie v. Robbins, is potentially just as significant.
- Bush Administration: No Freedom From Government Harassment (Reason Magazine)
But every right is a "right against retaliation." That's sort of the whole point. A citizen of the most repressive regime on earth can still criticize the government, assemble with anti-government activists, and practice his religion. What separates free societies from oppressive ones is what happens to him afterward.