Bench Memos

Law & the Courts

Seventh Circuit Properly Applies Discredited Supreme Court Precedent

In a unanimous ruling yesterday (in Price v. City of Chicago), a Seventh Circuit panel ruled that Chicago’s “bubble zone” ordinance, which (in the panel’s summary) “prohibit[s] any person from approaching within eight feet of another person near an abortion clinic for the purpose of engaging in the type of speech associated with sidewalk counseling,” is permissible under the Supreme Court’s ruling in Hill v. Colorado (2000). As the panel explains, the Chicago ordinance is indistinguishable from the Colorado law that the Court allowed in Hill.

The Court’s ruling in Hill was widely regarded as egregious when it was rendered—Harvard law professor Laurence Tribe called the case “slam-dunk simple and slam-dunk wrong”—and it has fared very poorly over the years. As the panel explains, recent Supreme Court rulings “have deeply shaken Hill’s foundation,” and Hill “is incompatible with current First Amendment doctrine.” Nonetheless, Hill “remains on the books and directly controls here.” More broadly:

The [Supreme] Court’s instructions in this situation are clear: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case [that] directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (quotation marks omitted).

(If these “instructions” seem at all surprising, that is probably only because so many lower courts that ruled against state marriage laws in the years before Obergefell v. Hodges made up all sorts of weak excuses why intervening Court rulings meant that the Court’s directly applicable precedent in Baker v. Nelson (1972) somehow no longer governed.)

Much as I dislike the result in the case, I think that the esteemed panel—opinion by Diane Sykes, joined by Amy Coney Barrett and district judge William Griesbach—faithfully applied the Court’s instructions.* The Court should grant review in this case to correct its grievous error in Hill.

Both Sykes and Barrett, I’ll note, are on President Trump’s list of Supreme Court candidates, and Barrett was maligned during her 2017 confirmation process by those, like Senator Dianne (“The dogma lives loudly within you”) Feinstein, who baselessly claimed that she would indulge her Catholic faith and her putative pro-life convictions in deciding cases.

* Per this post by Michael Paulsen, I will allow for the possibility of exceptional circumstances in which a lower court may defy governing Supreme Court precedent. (That is not what the courts that declined to apply Baker v. Nelson purported to do.)

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