Context and Trivia

My academic mantra, writes Professor James C. Foster in the Introduction to BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska’s Capital, which examines the history and development of the Supreme Court’s decision in Morse v. Frederick, “[is] context, context, context” (p. 2). Foster, a political scientist at Oregon State University, argues that it is necessary to approach constitutional law “by situating the U.S. Supreme Court’s … doctrinal work within surrounding historical context, shorn of which doctrine is reduced to arid legal rules lacking meaning and significance” (p. 1). He seeks to do so in BONG HiTS 4 JESUS by incorporating interviews with and discussion about the parties, some bystanders, and various judges and lawyers who worked on the case throughout its multiyear history. Among his subjects are Douglas Mertz, who represented Juneau high school senior Joseph Frederick from the federal district court in Alaska all the way to the Supreme Court; David Crosby, Principal Deborah Morse’s initial attorney; former Solicitor General Kenneth Starr, who, as a partner at Kirkland & Ellis, took up Morse’s case after the Court of Appeals for the Ninth Circuit ruled against her; Mary Becker, the former president of the Juneau-Douglas school board; and retired teacher Clay Good, the former president of the Juneau Education Association (the teachers’ union) who took the famous picture showing Frederick and other students hoisting the “BONG HiTS 4 JESUS” banner. Foster also traces the litigation from the moment in January of 2002 when the students in Juneau held up their cryptic sign through the district court proceedings, the decision by the Ninth Circuit, the reversal by the Supreme Court, and ultimately the settlement in November of 2008 after a second round of oral arguments at the Ninth Circuit. Explicitly striving to emulate a veritable pantheon of academic role models, including, among others, the sociologist Alan F. Westin, legal scholars Michael Dorf and Peter Irons, historian Richard Polenberg, and, “[his] muse” (p. 3), the famed anthropologist Clifford Geertz, Foster consciously draws upon what he refers to as “a rich variety of legal, political science, anthropological, and literary materials” (p. 3). His goal, he explains, is “to make sense of the origins and consequences of the perfect constitutional storm that engulfed Joseph Frederick, Deborah Morse, and the other ‘natives’ whose stories shape this book” (p. 3).