That’s a good point! I was just reading an article about the current nominee being a law clerk for Kennedy back in the day. I didn’t connect that he was probably his clerk in 1994 when Smith v. Doe was decided and the erroneous “frightening and high” statement was brought up. I’m researching to see if this is one he recommended for cert, but it’s hard to find that information.
Another interesting fact I just saw while researching the 1994 decision is that the attorney on behalf of the petitioners (Smith et al) was John G. Roberts, Jr. ESQ. Could this possibly be the same John Roberts that is currently the chief justice? If so, then we know we cannot count on his vote ever and he is the tool that brought up the “frightening and high” assertion. More research is needed to verify this though.