Reply To: Packingham: Unanimous Court strikes NC’s social media ban

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I don’t want to speculate too much. But let’s assess the facts. 1) Alito deliberately bypassed the “frightening and high” language from McKune. 2) He cites to the weakest statistical support he can find (as the Washington Post has helped to point out in its video today). 3) He’s writing a concurrence that sounds like a dissent. 4) The majority makes very little noise about recidivism or re-offense rates. 5) He’s a well-educated man who holds a seat on arguably the most esteemed judicial bench in the history of the world. Now, take all of that and wrap it together, add a little salt and pepper, and you’ve got a peculiarity that demands more sophisticated explanation. And the only thing I can come up with is that Alito is deliberately poisoning the well out of which the Court has been drinking all these years: McKune v. Lile. In a sense, one could view his whimpering citation to McKune as the Court’s way of saying, “The old bitch ain’t dead yet, but she’s sure as hell on the way.”