I had observed the oral arguments in Tom F. and I felt that justices Alito, Scalia, Thomas and CJ Roberts formed one group. The other four, I surmised were Bryer, Ginsburg, Stevens and Souter. If that was right, then three justices changed their positions, Souter, Alito and CJ Roberts. Even if I am wrong (and the per curiam decision did not reveal who the two groups of four were), at least one of these justices changed sides since Tom F. Who do you think it was?
This raises serious doubts about the theory of static or literal interpretation of the law by judges. If three of the eight flipped in the matter of a few months, it would appear that judges really do make law, not just interpret it. Most fair observers of the court would say that ideology guides the decisions of a justice more than any "literal interpretation" theory. Sure that is what they all say in the confirmation process, but does anybody really believe that ideology does not affect court rulings? Fortunately special education is not a liberal or a conservative issue. In this field, the lines blur. I believe that special education has widespread support across the political spectrum, and I hope that remains true.
Now for some additional resources: Here is a news article discussing the case. Here is the take of the SCOTUS blog. Here is an article by a mental health law center encouraging a greater focus upon the least restrictive environment considerations concerning the appropriateness of the parent's private placement.
More on this important decision in the next post in this series.