Bench Memos

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This Day in Liberal Judicial Activism—June 29


1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.”

This Day in Liberal Judicial Activism—June 28


2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”


Next Monday’s Ruling in Harris v. Quinn


Public-sector union bosses will have difficulty sleeping this weekend, as they await the Supreme Court’s disposition on Monday of what may be the surprise blockbuster of the term, Harris v. Quinn. The Court may well overrule a dubiously reasoned precedent from 1977—Abood v. Detroit Board of Education—that held that the First Amendment allows the government to condition a person’s employment in the public sector on that person’s paying fees to a union.

Public-sector unions, of course, have benefited massively from the coerced funding that Abood allows.

The unions’ worst nightmare became more vivid yesterday when Chief Justice Roberts and Justice Breyer wrote opinions from the Court’s January calendar. That leaves Justice Alito as the only justice who has not yet written a lead opinion from that calendar. Alito has also written one fewer opinion for the term than any of the other justices. So it’s a very good bet that he was assigned to write in Harris.

Two years ago, in Knox v. SEIU, Alito wrote an excellent majority opinion that held that the First Amendment does not allow the government to authorize a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political activities. As I discussed at the time, the Knox ruling was significant less for its specific holding than for the Court’s long-overdue awakening to what Alito aptly called “the critical First Amendment rights at stake.”

The Court in Knox did not “revisit … whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” But it did observe that the free-rider arguments that those cases have relied on—i.e., preventing nonmembers from free-riding on the union’s collective-bargaining activities—“are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.” So the Court’s ruling on Monday may be the occasion for correcting that anomaly.

Counseling, Not Protesting


Various folks on the Left were upset when Justice Scalia, at the oral argument in McCullen v. Coakley, objected to the state attorney’s characterization of Eleanor McCullen and her co-petitioner “sidewalk counselors” as “protestors.” So it’s worth highlighting that the four liberal justices all signed on to an opinion that likewise states that sidewalk counselors cannot “fairly be described as protestors”:

Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions. [Emphasis added.]

Too bad that Judge Posner, before spewing his deranged comments, didn’t read the opinion carefully enough to understand what was involved.

Selective Functionalism in NLRB v. Noel Canning


In his majority opinion in yesterday’s recess-appointment ruling, Justice Breyer purports to adopt a general “functional” approach to the Recess Appointment Clause, as opposed to what he derides as the “formalistic” approach that Justice Scalia takes in his opinion concurring in the judgment. Such wordplay is, of course, a routine means by which living constitutionalists seek to camouflage their escape from the unwelcome confines of textualism.

What I would like to highlight is how opportunistic Breyer is in his supposed functionalism. When it comes to the question whether the Senate’s pro forma sessions must be treated as periods of recess, a functionalist, I would have thought, would have readily dismissed pro forma sessions as meaningless. Indeed, the very term pro forma suggests that it would be formalistic to count them as real.

Breyer adopts the rule that “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” The primary part of the rule—“the Senate is in session when it says it is”—is certainly not functionalist. Further, while the proviso sounds functionalist, Breyer, in applying it, suddenly and selectively becomes a rigid formalist.

For example, in addressing whether the Senate chamber was empty during pro forma sessions, Breyer doesn’t entertain factual evidence but instead relies on the (frequently counterfactual) “presumption” under the Senate rules that “a quorum [i.e., a majority of the the Senate] is present until a present Senator suggests the absence of a quorum.” So by Breyer’s deliberately blinkered vision, there were 51 senators present during the entirety of the pro forma sessions.

More broadly, Breyer rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” That kind of “factual appraisal,” Breyer maintains, is not “legally or practically appropriate.” I think that he’s right as to legal inappropriateness—but I don’t see how his rejection of functionalism and pragmatism here is consistent with his broader embrace of it in the remainder of his opinion.

In sum, Breyer’s approach isn’t principled or consistent. As usual, he will do whatever it takes to get to the result that happens to make sense to him.


Do the Administration’s Numerous 9-0 Losses Mean It Is Being Extreme?


Over at the Volokh Conspiracy, there’s an interesting debate going on between Ilya Somin, Orin Kerr, and David Bernstein. Somin started the discussion with this post. An excerpt:

Still, when the president’s position in multiple major constitutional cases cannot secure even one vote on an ideologically and methodologically diverse Court that includes two of his own appointees, it is likely there is something wrong with the administration’s constitutional worldview. The mistakes cannot be attributed to low-level underlings.

Orin Kerr responded twice thusly:

Ilya has some fun suggesting that Obama was the uniter, in that he personally brought the Justices together with his positions. But at least in the cell phone cases, the arguments likely were crafted mostly by career lawyers who have been in the government for a long time. The Bush Administration DOJ took the same position back when it existed, at least to the extent that the arguments of DOJ lawyers can be imputed to “the Administration.” And state prosecutors took the same position in their respective state courts and in Riley. It’s the standard position you would expect any prosecutor to take, not something BHO cooked up one afternoon after reading his daily chapter of Saul Alinsky.

Somin replied:

Orin suggests that the positions the administration took in these cases were not extreme in the sense that they were not “unusual position[s] that go… way beyond what the repeat-player litigant would be expected to take.” In many of these cases, this is true (though not always: even Justice Elena Kagan, Obama’s former Solicitor General, expressed incredulity that the administration took the position it did in one of these cases). But this is precisely the problem I have emphasized in my writings on this subject, going back to my USA Today op ed last year. It has become normal for administrations of both parties to latch onto highly dubious – and, yes, extreme – theories of federal power whenever they might help the administration promote its policy agenda or win a case in court. Such behavior is not “extreme” in every possible sense of the word. But that is hardly reassuring.

David Bernstein chimed in, too, with several examples. You can read them all here

Posner’s Bizarre Comments on McCullen v. Coakley


Here is how Chief Justice Roberts, joined by the four liberals, described the speech that “sidewalk counselor” Eleanor McCullen and her fellow petitioners were barred from providing on public sidewalks within the “buffer zone” created by the Massachusetts statute:

[Petitioners] attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.

And here is Seventh Circuit judge Richard Posner’s deranged account on Slate:

The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

It’s strange enough that Posner feels himself free to express his contempt for “abortion protesters,” stranger still that he is so confident that he knows what “a woman about to have an abortion needs,” and even stranger that he baselessly provides such a distorted account of Eleanor McCullen’s counseling activities. [Addendum: Although Posner is too obtuse to recognize it, Eleanor McCullen and other sidewalk counselors entirely agree with him that being screamed at is not what a troubled pregnant woman needs.]

As I’ve said before of Posner’s supposed “pragmatism”: I would have thought that the necessary intellectual temperament of a pragmatist would be empirically focused, skeptical of his own initial certitudes, and meticulous — not abstract, dogmatic, and sloppy.

Yet more evidence that Posner has lost it.

Laurence Tribe on McCullen v. Coakley


Harvard law professor Laurence Tribe’s op-ed in today’s New York Times is noteworthy. Tribe, who is ardently pro-abortion (he calls himself a “committed supporter” of the “right to choose”), says that the Supreme Court “got it right” in yesterday’s ruling striking down Massachusetts’s buffer-zone statute. Indeed, Tribe agrees with Justice Scalia that the statute “was anything but neutral toward the content of the speech at issue,” and he labels the Chief Justice’s contrary claim “implausibl[e]” and “illusory.”

(See my Part 1 and Part 2 posts on McCullen.)

“Murphy’s Law”


NRO has kindly put on its home page my review, from the current print issue of National Review, of Bruce Allen Murphy’s new biography of Justice Scalia.

Obama Position Rejected 9-0 in McCullen v. Coakley


Just a reminder that the Obama administration, in its amicus brief in McCullen v. Coakley (the buffer-zone case decided yesterday), argued that the Massachusetts statute was fine and dandy. Indeed, the Solicitor General’s office asked to, and was allowed to, participate in the oral argument at the Court.

The fact that all nine justices ruled against the Obama administration’s position is yet another indicator of how hostile the Obama administration is to speech it disfavors and how aggressive it is in pursuing its extremist pro-abortion agenda.

(See my Part 1 and Part 2 posts on McCullen.)

This Day in Liberal Judicial Activism—June 27


1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Justice Breyer, who provides the decisive fifth vote in each case, explains that for “difficult borderline cases” that are “fact-intensive,” there is “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment, be assured, “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.” The particular factor that Breyer finds “determinative” in the Texas case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”

Thus, under Breyer’s view (as well as that of the other members of the Kentucky majority), American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage. 

NLRB v. Noel Canning: A Reprieve for the Separation of Powers


Today’s decision in NLRB v. Noel Canning was a major loss for the Obama administration, adding to its long list of unanimous losses with the Supreme Court. The case, which I have previously written about here, deals with the constitutionality of President Obama’s appointment of two members to the National Labor Relations Board. Rather than fiddle around with getting Senate approval for his picks, the president purported to use his recess appointment power to bypass the Senate. The problem – pooh-poohed by the president and his backers initially, but endorsed by all nine justices — is that the Senate wasn’t in fact in recess. And the president can’t simply declare that the Senate is in recess when it suits him. The facts of this case are a key example of the aggressive lawlessness that is the hallmark of this administration. So it is a relief to see the Court holding the line on the constitutional limits that keep our government in check.

The majority opinion was written by Justice Breyer for the liberal wing of the court, plus Justice Kennedy. The distinction between the main opinion and Scalia’s concurrence in the judgment for the remaining justices largely turns on a difference in interpretive theories: Should the Court stick with the Constitution’s plain text or should it allow that text to be modified by historical practice and the justices’ view of which outcome best fulfills the Constitution’s broader purposes?

Here’s the text of the recess appointments clause that is causing all the fuss:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Breyer’s opinion asks three questions about the meaning of this clause, finding that the president’s appointments at issue pass two, but fail the third. Scalia would have flunked the president across the board.

The first question is what recesses the clause covers. There are inter-session recesses in between formal sessions of Congress and intra-session recesses like those that occur over the summer. But the text seems to expect only one recess, “the Recess of the Senate.” 

Justice Breyer acknowledged the normal assumption that “the” indicates one specific recess, but determined ultimately that it was sufficiently ambiguous to cover both types of recess. Since the Civil War era at least, Congress has taken intra-session recesses of varying lengths and there have been numerous recess appointments during those recesses, which the Senate and the courts have generally not taken issue with. Breyer views those facts along with his generic reading of “the” to support the president’s position of a broad recess-appointment power covering both types of recesses.

By analogy to the Adjournments Clause in the Constitution and by long tradition both parties agreed that the recess-appointments clause doesn’t apply to recesses of three days or less. But the court looked to historical practice to determine that appointments during recesses of three to ten days are presumptively outside the recess-appointments clause because historically very few appointments have been made during such recesses.

Keep reading this post . . .

McCullen v. Coakley: A Victory for Free Speech, Sort Of


Today’s 9–0 decision against Massachusetts in McCullen v. Coakley may not be a resounding victory for the First Amendment, but at least it’s something.

As Ed Whelan has already pointed out in his summary, the Supreme Court voted unanimously to strike down no-speech buffer zones extending 35 feet around Massachusetts abortion clinics. But don’t let the vote fool you: The majority opinion was written by Chief Justice Roberts, who was joined by the Court’s liberals. Justice Scalia wrote a blistering separate opinion concurring in the judgment, joined by Justices Kennedy and Thomas. Justice Alito wrote a separate opinion concurring in the judgment. The crux of these differing opinions is whether the Massachusetts law is truly viewpoint-neutral. The majority said it was; everyone else thought otherwise.

The majority opinion spent much of its time discussing the facts of the case, all of which are flattering to the plaintiffs:

Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.

As a result of these buffer zones, McCullen and the others couldn’t speak to the women they are seeking to persuade.

But someone else did get to speak to the women:

The second statutory exemption allows clinic employees and agents acting within the scope of their employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses “escorts” to greet women as they approach the clinic, accompanying them through the zones to the clinic entrance. Petitioners claim that the escorts sometimes thwart petitioners’ attempts to communicate with patients by blocking petitioners from handing literature to patients, telling patients not to “pay any attention” or “listen to” petitioners, and disparaging petitioners as “crazy.”

Public streets and sidewalks are public forums for speech, but can be subjected to time/place/manner speech restrictions. Even then, the restrictions must be content-neutral, narrowly tailored to a significant governmental interest, and leave open alternative channels of communication.

That issue, the viewpoint-neutrality of the law, was the source of the most profound disagreement in this case. The plaintiffs had alleged from the beginning that the buffer zones were not content-neutral, a strong position in light of the law’s structure and history. But because the statute didn’t “draw content-based distinctions on its face,” the majority thought it was neutral, even though it had the “inevitable effect” of squelching speech about abortion.

Indeed, the majority was willing to take the Massachusetts legislature at its word:

[The statute’s] stated purpose is to “increase forthwith public safety at reproductive health care facilities.” Respondents have articulated similar purposes before this Court—namely, “public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways.” It is not the case that “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.”

Ironically, the majority even used the overbreadth of the statute as an indication that it was not designed for the purpose of disfavoring one type of speech. What did the Chief cite for this proposition? A 1996 article by none other than then-professor Elena Kagan. The Chief used this argument to dispose of yet another example of invidious overbreadth, namely, that the crowd-control problems cited as the reason for imposing this statute on a whole state existed only at a single clinic.

The Chief continued. Only employees of the clinic were allowed to talk within the buffer zone, but no matter: “on the record before” the Court, “[t]here is nothing inherently suspect about providing some kind of exemption” to clinic employees, and then he goes along to cite several types of employees other than clinic escorts who would be covered by the exemption, such as maintenance workers or security guards. But unlike the clinic escorts, speech was not a central part of these employees’ work, so this was pretty weak tea. And for some reason that still doesn’t make sense to me, Chief Justice Roberts thought that whether the clinic authorizes escorts to speak within the buffer zones makes all the difference.

Anyway, the least objectionable portion of the majority opinion is about the overbreadth or “narrow tailoring” question. Along with the Court’s four liberals, the Chief Justice concluded that the statute pushed the plaintiffs too far away from the clinics while not really preventing any legitimate harms. Factually, this seemed to be a strong point for the plaintiffs, since there was uncontradicted testimony that the plaintiffs’ effectiveness in persuading women not to abort dropped substantially after the statute’s restrictions came into play.

In a particularly strong paragraph, the majority considered it insufficient that Mrs. McCullen and the other plaintiffs could shout and yell if they wanted to:

That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be “seen and heard” by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.

Based on these problems, the majority concluded, the state should focus on enforcing laws that meet the stated purposes of the statute, i.e., preventing harassment and violence, rather than making up speech restrictions.

Justice Scalia’s separate opinion, although agreeing in the result, unloaded withering criticism on the majority, accusing the Chief of suborning “abortion distortion” and spending several pages of his opinion showing that the regulation was receiving special treatment simply because it involved abortion. The majority’s cursory analysis of the statute’s stated purpose, Justice Scalia said, would allow jurisdictions to squelch antiabortion speech: “With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in Part IV of the majority’s opinion.” The fact that the statute targeted all abortion clinics in Massachusetts to fix problems at one clinic, Scalia said, was “rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.” Scalia concluded that the statute was content-based and therefore should have been subject to strict scrutiny, reiterating that Hill v. Colorado (2000) should be overruled.

In a parting salvo, Scalia said the following about narrow tailoring:

Having determined that the Act is content based and does not withstand strict scrutiny, I need not pursue the inquiry conducted in Part IV of the Court’s opinion—whether the statute is “‘narrowly tailored to serve a significant governmental interest[.]’” I suppose I could do so, taking as a given the Court’s erroneous content-neutrality conclusion in Part III; and if I did, I suspect I would agree with the majority that the legislation is not narrowly tailored to advance the interests asserted by respondents. But I prefer not to take part in the assembling of an apparent but specious unanimity. I leave both the plainly unnecessary and erroneous half and the arguably correct half of the Court’s analysis to the majority.

Justice Alito’s separate opinion concurring in the judgment laid out the same trenchant argument he raised at oral argument: an abortion clinic employee and a sidewalk counselor approach a woman near the entrance to the abortion clinic. Inside the buffer zone, the employee can say anything in the scope of her abortion-related employment but the nonemployee cannot, ergo viewpoint discrimination.

This is a disappointing opinion in many ways, but I will tender a few concluding thoughts. First, as Ed Whelan noted earlier, at least the Court upheld free speech and at least it’s 9-0 in favor.

Second, although the majority opinion concluded that the law was content-neutral, the holding on narrow tailoring may prove to be the decision’s silver lining. Hopefully after this decision, states will abandon broad, sweeping criminal statutes like this one and focus on individualized remedies to specific compelling problems.

Third, the biggest question remains: why didn’t the Court write a narrower opinion? The majority didn’t have to write the section about viewpoint-neutrality. That section adds nothing to the ultimate analysis, and seems more like a slap in the face to Scalia and other conservative justices than a productive exercise in doctrinal analysis. The statute didn’t survive the lower level of scrutiny anyway, so there was no need to determine whether the law was viewpoint-neutral. Nor was it necessary for the Chief to write that section to counter the possibility that some of the suggested policy alternatives could have been viewpoint-discriminatory (they hadn’t been briefed or argued). He could have abstained from making recommendations entirely. It would have been truly shocking if the liberals demanded that Roberts discuss that prong in exchange for joining his opinion. So: If the Chief was so interested in consensus or judicial minimalism or whatever, why decide that question at all?

Oddity in McCullen v. Coakley


As you know, the Supreme Court released its decision today in McCullen v. Coakley, the case about buffer zones established under Massachusetts state law. (Ed Whelan’s summary is here.) I’m still digesting the opinion, but one thing in the Chief Justice’s majority opinion jumped out at me on pages 16-17 of the slip opinion. The Chief has just worked through several of the stated reasons for the no-speech buffer zone and the exception for clinic employees who are acting in the “scope of their employment”:

Petitioners did testify in this litigation about instances in which escorts at the Boston clinic had expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways. It is unclear from petitioners’ testimony whether these alleged incidents occurred within the buffer zones. There is no viewpoint discrimination problem if the incidents occurred outside the zones because petitioners are equally free to say whatever they would like in that area. Even assuming the incidents occurred inside the zones, the record does not suggest that they involved speech within the scope of the escorts’ employment. If the speech was beyond the scope of their employment, then each of the alleged incidents would violate the Act’s express terms. Petitioners’ complaint would then be that the police were failing to enforce the Act equally against clinic escorts. While such allegations might state a claim of official viewpoint discrimination, that would not go to the validity of the Act. In any event, petitioners nowhere allege selective enforcement.

It would be a very different question if it turned out that a clinic authorized escorts to speak about abortion inside the buffer zones. In that case, the escorts would not seem to be violating the Act because the speech would be within the scope of their employment. The Act’s exemption for clinic employees would then facilitate speech on only one side of the abortion debate—a clear form of viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic. But the record before us contains insufficient evidence to show that the exemption operates in this way at any of the clinics, perhaps because the clinics do not want to doom the Act by allowing their employees to speak about abortion within the buffer zones. [citations omitted]

Now this is truly odd. The Chief says that the plaintiffs’ claim isn’t really about viewpoint discrimination because the plaintiffs haven’t shown that the escorts were acting illegally (i.e., outside the scope of their employment, and therefore subject to the criminal penalties). But it was apparently clear that in these incidents, the escorts were (1) hired by the clinic; (2) working for the clinic; (3) bringing women to the clinic; (4) with the women outside the clinic; (5) disparaging the plaintiffs; and (6) pushing away people who oppose the clinic. The state never prosecuted the escorts, suggesting that the state thought they were acting within the scope of their employment. And yet the Chief thinks there’s no record of evidence that the escorts were speaking within the scope of their employment? That is, to put it mildly, absurd.

In addition, the Chief wanted yet more evidence to show that the escorts were acting legally. But how does the facial validity of a state law turn on whether the clinic escorts were acting legally? As the Chief admits, that’s only relevant to a claim of selective enforcement. It’s incoherent.

McCullen v. Coakley—Part 2


Having summarized the competing positions in today’s ruling in McCullen v. Coakley, I’ll now offer a few quick observations (including on a possible tea leaf bearing on Hobby Lobby):

1. A decision upholding the statute would have been a terrible First Amendment result. So avoiding that result is an important victory. Further, the fact that all nine justices voted to strike down the statute is a somewhat encouraging sign.

2. That said, I’m disappointed by how narrow the majority opinion is. For whatever reason (desire for a unanimous result?), the Chief Justice chose to pursue common ground with the four liberal justices rather than with the four who concurred in the judgment.

I confess that I’m especially baffled by the Chief Justice’s conclusion that the statute’s exemption for clinic employees doesn’t render it viewpoint-discriminatory. The fact that abortion clinics can authorize clinic escorts to speak about abortion in the buffer zones, and to counter the messages that sidewalk counselors can deliver only outside those zones, ought to suffice to show that the statute discriminates on the basis of viewpoint. [Clarification: The Chief says that an abortion clinic’s exercise of that power would render the exemption viewpoint-discriminatory and vulnerable to an as-applied challenge. My point is that I find it strange to have the question whether the exemption is viewpoint-discriminatory hinge on whether an abortion clinic chooses to exercise a power that it has.]

I share Scalia’s concern that the Court continues to apply “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” I hope that Scalia is right that future cases will establish that the majority “has sub silentio (and perhaps inadvertently) overruled” Hill v. Colorado (2000).

3. As I’ve suggested, in the Hobby Lobby case the Court has available to it a narrow resolution that might garner a supermajority or even unanimity—namely, that the HHS mandate is clearly not the least restrictive means of furthering any compelling interest that might be assumed to exist, and that it thus violates the federal Religious Freedom Restoration Act, because the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a means that is less restrictive of their religious liberty. Contrary to what some commentators seem to suppose, the Court’s reliance on this ground would not require the Court to hold that the accommodation itself satisfies RFRA. Instead, it or the lower courts would presumably resolve that question somewhere down the road in the pending litigation brought by religious nonprofits against the accommodation.

In his majority opinion in McCullen, the Chief Justice, in the course of discussing whether the statute is narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives. (See pp. 11, 23-27 & n.8.) I wonder whether the Chief Justice and some or all of the liberals who joined his opinion in McCullen will use the accommodation to similar effect in Hobby Lobby.

McCullen v. Coakley—Part 1


In today’s ruling in McCullen v. Coakley, all nine justices agree that the Massachusetts statute that creates a general no-speech zone on streets and sidewalks within 35 feet of an abortion clinic violates the First Amendment. But they divide sharply, 5-4, on their reasoning. I’m going to summarize the competing positions here, and in a follow-on post will offer some observations.

Chief Justice Roberts, joined by the Court’s four liberals, wrote the majority opinion. In Part III of his opinion (slip op. at 10-18), the Chief Justice concludes that the statute is content-neutral. First, although it has the inevitable effect of disproportionately restricting abortion-related speech, it can be justified by content-neutral concerns about public safety and patient access.

Second, the statute’s exemption for clinic employees does not render it viewpoint discriminatory because “[t]here is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones.” Yes, there was testimony about clinic escorts “who expressed views about abortion to the women they were accompanying, thwarted [sidewalk counselors’] attempts to speak and hand literature to the women, and disparaged [the sidewalk counselors] in various ways.” But it is “unclear” whether these incidents occurred within the buffer zones. And even if they did, “the record does not suggest that they involved speech within the scope of the escorts’ employment.”

In Part IV of his opinion (pp. 18-29), the Chief determines that the statute is not “narrowly tailored to serve a significant governmental interest.” The buffer zones “burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”

Justice Scalia and Justice Alito wrote opinions concurring in the judgment only.

In his opinion (joined by Kennedy and Thomas), Scalia slams the majority for “carr[ying] forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents” and for perpetuating “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

Scalia argues that the Court’s content-neutrality discussion is both unnecessary (pp. 2-4) and wrong (pp. 4-14). As to its wrongness: First, “Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” Only one abortion clinic “is known to have been beset by the problems that the statute supposedly addresses.” The buffer zones “add nothing to safety and access” and instead achieve only the suppression of speech opposing abortion. The statute was enacted “as a more easily enforceable substitute” for a law that was clearly directed at the suppression of unwelcome speech and was meant to serve the same interest. (Scalia also argues that the Court should have overruled Hill v. Colorado (2000)—which even liberal law professor Laurence Tribe calls “slam-dunk simple and slam-dunk wrong”—and that it may implicitly, if inadvertently, have done so.)

Second, Scalia argues that the statute is viewpoint discriminatory, as it’s crystal clear that clinic escorts act within the scope of their employment when they speak in favor of abortion and counter the speech of sidewalk counselors.

In his 3-page separate opinion, Alito explains his own view that the statute effects “blatant viewpoint discrimination.” 

Today’s Rulings


The Supreme Court will be issuing rulings today at 10 a.m. (My guess is that the Court will issue rulings in two of the remaining four cases.) I will update this post to provide quick news, and perhaps a comment or two, on the results. (For the initial news, I will be relying on SCOTUSblog’s live blogging.) I will reserve any extended commentary for later posts.


Noel Canning (recess appointments)—Breyer opinion; Obama’s recess appointments unlawful. Narrow ruling: There was no recess. Scalia (joined by Chief, Thomas, Alito) concurred in judgment, on much broader grounds. Opinion here.

Breyer: (1) Recess-appointment authority can be exercised during any recess, intrasession or intersession. (2) Senate is in session when it says it is and is able to transact business. Three days is too short to count as a recess.

Scalia concurrence in judgment: Recess-appointment authority can be exercised only during intersession recesses and only with respect to offices that become vacant during recess.

McCullen (First Amendment challenge to a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic)—Opinion by Chief strikes down statute. Victory for pro-life protesters, but how broad? Court unanimous on result. Separate opinions concurring in judgment by Scalia (with Kennedy and Thomas) and Alito.

That’s it for today. Public-sector unions have their worst nightmare: Alito is the probable author of forthcoming opinion in Harris v. Quinn. I’d bet on Chief as author of Hobby Lobby. (That would give him as many opinion assignments as Scalia, Kennedy, and Sotomayor.)

This Day in Liberal Judicial Activism—June 26


1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.

Kicking the Baker Out of the Kitchen


Ed Whelan has ably summarized the unfortunate Tenth Circuit ruling today in Kitchen v. Herbert, affirming a district court’s invalidation of Utah’s marriage amendment.  Like Ed, I am impressed with Judge Paul Kelly’s dissent.  Here I’d like to highlight just how irresponsible it was of Judges Lucero and Holmes to disregard the binding character of the precedent in Baker v. Nelson (1972), in which the Supreme Court summarily dismissed an appeal from the Minnesota supreme court (in a case identical to today’s same-sex marriage cases) “for want of [a] substantial federal question.”

This summary dismissal was in a case not fully briefed and argued, but is nonetheless a completely binding precedent on all federal courts inferior to the Supreme Court.  Many district courts have now disgracefully pitched the Baker case overboard, and the Tenth Circuit panel’s two judges in the majority have done so again in Kitchen.  As Judge Kelly’s dissent rightly notes, there is nothing in the Supreme Court’s more recent rulings in Romer v. Evans, Lawrence v. Texas, or United States v. Windsor that contradicts Baker, and so it must control unless and until the Supreme Court overrules it.

How does Judge Lucero get around Baker?  Apparently by hoping his readers (including the justices of the Supreme Court should they review this ruling) will not notice the word “here” or its context in a quotation he offers of another case.  Judge Lucero writes, “The Supreme Court has held that ‘summary dismissals are, of course, to be taken as rulings on the merits,’” and then adds this (my punctuation in reformatting what was a block quotation in the original, p. 16): “Summary dismissals ‘do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits.’”

Notice that word “here” in the phrase “do not . . . have the same precedential value here.”  That word appears in a footnote Lucero is quoting, in a 1979 Supreme Court decision, and the word “here” plainly means “here in the Supreme Court,” should a case arise in which a previous summary dismissal is on point.  But elsewhere, in lower courts, as the Court’s own repeated statements make clear, summary dismissals have exactly “the same precedential value” as fully briefed and argued decisions on the merits, and those courts do not have the same freedom of reconsideration.  Baker is a precedent squarely on point, indeed identical, to the Kitchen case in Utah, and as Judge Lucero elsewhere concedes, even his best alternative precedent for undermining Baker—last year’s Windsor decision—deals with an issue that “is not identical to the question before us” (p. 18, my emphasis).  Hence it is clearly improper for him not to follow Baker as a matter of course.

Judge Kelly gives ample reasons why the court should follow Baker even if it has some freedom of action not to do so, and his opinion is well worth reading as a model of the judicial restraint the Constitution calls for in these cases.  But let us not allow it to pass from our notice, just how fast and loose the activist judges play with the time-honored norms of lower-court respect for Supreme Court precedent.  Along with all the other principles they traduce, that is.

Re: Tenth Circuit Ruling Against Utah’s Marriage Laws


Some quick observations on today’s ruling, by a divided Tenth Circuit panel, against Utah’s marriage laws:

1. The majority opinion, written by Clinton appointee Carlos Lucero and joined by Bush 43 appointee Jerome Holmes, subjects Utah’s Amendment 3 to strict scrutiny (the most stringent standard of review). The dissent, by Bush 41 appointee Paul Kelly, applies deferential rational-basis review.

2. I’m not going to try to summarize the 65 pages of the majority opinion. Its general line of argumentation and rhetoric seems (not surprisingly) very similar to that of the district courts that have ruled against marriage. One (perhaps empty) exception: The majority “actively discourage[s]” any reading of its opinion that would “brand those who oppose same-sex marriage as intolerant.”

3. Here is a passage from the opening of Judge Kelly’s strong dissent (some citations omitted):

“Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,” at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage. See United States v. Windsor, 133 S. Ct. 2675, 2714 (2013) (Alito, J., dissenting). The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender…. 

If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head. Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable. And given the recent advent of same-gender marriage, Windsor, it is hardly remarkable that a state might codify what was once implicit. 

Judge Kelly concludes with this exhortation:

We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.

Here is a high-level guide to his dissent:

a. The Supreme Court’s summary disposition in Baker v. Nelson (1972) forecloses lower courts from recognizing a right to same-gender marriage. (Consistent with analysis of 2012 First Circuit ruling against DOMA.)  (Pp. 2-6.)

b. Tenth Circuit precedent requires rational-basis review of equal-protection claim of alleged sexual-orientation discrimination. (Pp. 3-8.)

c. There is no fundamental right to same-gender marriage (pp. 8-13):

First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries…. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue.

(P. 9 (citations omitted).)

d. Utah’s marriage laws easily satisfy rational-basis review. (Pp. 13-21.)

4. This issue is obviously headed for the Supreme Court. The lower-court rulings are mere preludes. That said, the fact that the panel divided, and that so much turns on what the appropriate standard of review is, illustrates that the Court’s ultimate resolution of this issue is far from the fait accompli that the slew of district-court rulings might be mistaken to suggest. (Which isn’t to pretend that I’m optimistic about how this Supreme Court will rule.)


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