Puzzling case

[Mark Tushnet]

Things that Eugene finds obvious aren't obvious to me.  I've seen a lot
of "WELUVMA"-like plates, and no "KILLYRMA" plates, and I think there's
a (degree of) endorsement in accepting submissions.  (The fact that 99%
are accepted doesn't carry much weight; it just shows that most people
who ask for plates are people whose messages are inoffensive,
non-inflammatory, and consistent with public policy.)  Or, to put it
another way, I don't think people are ignorant of the fact that the
government screens submissions, from which it seems to me to follow that
there is some endorsement (maybe not enough to make things
constitutionally problematic, but some) in the program.

But, again on the broader issue, why should Eugene's (or the
life-tenured judges of the Eight Circuit's) intuitions about social
meaning prevail over those of the people's elected representatives?  (My
own intuitions are, of course, irrelevant to the broader question,
except insofar as they indicate that the people's elected
representatives might actually have a defensible view of social
meaning.)  That is, if the existence of a sufficient degree of
government endorsement of a privately generated message allows the
government to impose restrictions on the government's own actions --
producing the license plates --, why shouldn't the judgments of the
people's elected representatives on this contestable question of social
fact prevail over the seat-of-the-pants judgments of scholars or
life-tenured judges?  (To forestall an obvious misunderstanding, the
answer can't be, "Because the judges' job is to interpret the
Constitution," unless we have some explanation of why "interpreting the
Constitution" entails making definitive evaluations of contestable facts
about social meaning.)
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