It's Roberts' (somewhat less right-wing) Court (Part 3)

As this is being prepared, the 5-4 Court--Roberts voting with the liberals--invalidated the Louisiana abortion restrictions. More on that and on that continuing pattern below.

Source:Reuters/Leah Mills

We've previously looked at Chief Justice Roberts' breaking with his conservative colleagues and aligning with the Court's liberals to help form majorities in politically charged cases dealing with Obamacare and immigrantion (see Part 1), and LGBTQ rights and the death penalty (see Part 2). The point is not that I applaud his doing so (although I do, and wish he did so more regularly). The point is that he has been doing so and, whatever else political liberals may think of him, it simply cannot be denied that on some major issues he has prevented the Court from veering off too far to the right.

Let's finish this series by recalling a few other decisions reflecting the same pattern. Perhaps these cases, like those we've previously discussed, evince a Chief Justice concerned primarily about the legitimacy of his Court, i.e., rebuffing criticisms that it is just another institution polarized along partisan lines. Perhaps it's Roberts holding his Court together by giving the benefit of the doubt to the Court's liberals--at least every once in a while in close cases where he could honestly support either side. Perhaps it's the Chief Justice upholding the integrity of the Court's authority by supporting precedents against which he had originally dissented (as he just now did again in the Louisiana abortion case). Or perhaps it's actually the Chief Justice changing his mind after some time for reconsideration.

Again, whatever the reason--and likely there are different reasons in different cases--the emerging pattern is clear. Roberts has given political liberals, both on and off the Court, some significant victories

(Of course this has not escaped the President's notice--and ire.)


Okay, enough with preliminaries. Let's get to the last few cases we'll look at in this series that illustrate the pattern that may well be the most salient characteristic of this otherwise quite politically conservative Court.

Church and State. Late last month, the Chief Justice joined his liberal colleagues in refusing to lift the COVID-crisis restrictions on church attendance that had been imposed by California's governor. Roberts' 4 conservative colleagues all dissented. Justice Kavanaugh, in an opinion joined by Justices Thomas and Gorsuch, argued that the numerical limitations on gatherings and the requirement for social distancing unconstitutionally discriminated against religious exercise. This was so, according to Kavanaugh, because other similarly situated  activities did not face such restrictions. [Alito's dissenting vote was simply noted.]

Although the Court's decision was merely an order, Roberts' authored an opinion explaining why the majority got it right. The standard for granting emergency relief is that the constitutional merits are already "indisputably clear." Roberts deemed it "quite improbable" that the religious objectors could show that. Two basic reasons. First, despite the dissenters' claim, "only dissimilar activities...in which people neither congregate in large groups nor remain in close proximity for extended periods" are treated more leniently than churches. Second, the need for restrictions "during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement," which the Constitution "principally entrusts" to the "especially broad" latitude of the states' political officials. And such matters of public health and safety should usually "not be subject to second-guessing" by the federal judiciary.

In short, the Chief Justice disagreed with his conservative colleagues that the religious objectors had demonstrated that they were being treated disparately or too harshly. South Bay United Pentecostal Church v. Newsom, 2020.

Three years earlier, in another church-state case, Roberts held the middle ground to which some of his conservative colleagues and some of his liberal colleagues objected--naturally for different reasons. Writing the opinion for the Court, the Chief Justice explained that the ineligibility of religious organizations from a state program that subsidized the safety improvement of school playgrounds violated free exercise--i.e., the disqualification discriminated on the basis of religion, despite the purely secular purpose of the program's assistance.

Although Justices Kennedy and Alito joined Roberts' opinion in full, Thomas and Gorsuch objected that the ruling was too limited--i.e., it should not have been limited to playground safety, nor to secular versus religious uses.

While Justice Kagan fully joined Roberts' opinion, Breyer wrote a separate concurence to emphasize that the program in question, as well as the Court's ruling, was limited to a public service--here "the health and safety of children." The remaining liberals, Justice Sotomayor joined by Ginsburg, dissented on the ground that directly funding a religious organization violated the constitution's non-establishment mandate.

Here, as we have seen elsewhere, the Chief Justice struck a balance. He crafted a ruling that was narrow enough to secure a majority, despite differences or even dissents from some of his more ideologically-driven colleagues--conservative or liberal. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

Right to Choose/Abortion Rights. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Court ruled that a Texas law, that limited which physicians and facilities could provide abortion servoces, imposed an unconstitutional "undue burden" on a woman's right to choose. Chief Justice Roberts dissented, along with his conservative colleagues, Justices Thomas and Alito. [Justice Scalia had recently passed away and his vacancy had not yet been filled.]

Since that decision, Justice Gorsuch was appointed to fill Scalia's seat, and Justice Kavanaugh was appointed to replace Justice Kennedy who had retired in the interim. With Kennedy now missing from the 5 Justices who comprised the majority in Whole Woman’s Health, the Court was confronted this term with another case term involving similar abortion retrictions. This time the state was Louisiana, but the restrictions, the prospective consequences, and the outcome were similar. Only physicians with privileges at a nearby hospital could perform abortions. The restrictions would drastically reduce the availability of abortion services. The restrictions were ostensibly to protect the health of women. The restrictions, according to expert analysis, actually had minimal health-related benefits. And the Court again found such restrictions to be an unconstitutional burden on a women's right to choose.

The big difference? This time the Chief Justice sided with the liberals to give them the bare 5-4 majority. In a separate concurrence, Roberts insisted that he still believed that Whole Woman’s Health was wrongly decided. But, in a 16 page opinion in which he reviewed the reasons for stare decisis and the Court's abortion rights precedents to date, the Chief Justice set forth a jurisprudence that has become a distinctive part of his opinion and voting patterns: "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." [My emphasis.] Then, he concluded by applying that formula to his vote in this case: "The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law"--despite his disagreement then. June Medical Services L. L. C. v. Russo, 2020.
[Notably, Roberts signaled his thinking about this case when, in February 2019, he joined the liberals to form the same 5-4 majority to grant an order stopping the Louisiana law from taking effect while litigation was pending.]

One last one. This is one of my very favorites. I've written about it previously on New York Court Watcher.

Technological Searches. In the last few decades, the Court has seriously diluted constitutional search and seizure protections. It has done so, for example,

• by adding exceptions to the warrant requirement (e.g., warrantless searches and seizures incident to minor traffic infractions);
• by adding exceptions to the rule excluding unconstitutionally obtained evidence (e.g., the "good faith" exception);
• by diluting what is required for probable cause (i.e., the "totality of the circumstances" test);
• by diluting the 1967 landmark Katz decision which protected legitimate expectations of privacy (e.g., denying legitimacy to a host of privacy expectations);
• by (mis)using that landmark's formula in order to rule that searches are not "searches" for constitutional purposes (e.g., police searches from a hovering helicopter);
• by employing doctrines such as "third party" (i.e., if anyone else has access to information about you, then government needs no warrant or probable cause to access it);
• and "public access" (i.e., if members of the public can see you in a public place, then government can surveil you without a warrant or probable cause);
• and "tresspass" (i.e., equating search and seizure rights to property rights whereby a physical tresspass is necessary to constitute a violation);
• by limiting search and seizure protections to those specific items enumerated in the 4th Amendment.

Well, two years ago, Chief Justice Roberts joined the liberals and, in the 5-4 majority opinion he assigned to himself, he avoided or simply dispensed with some of those foregoing dilutions--to the considerable consternation of his more law and order minded colleagues. Roberts wrote that a warrant supported by probable cause is required for law enforcement to access cellphone location data about a suspect from a cellphone company. No, the fact that some entity, the company itself, already had access to the information (i.e., the third party doctrine) didn't allow the government to have warrantless access. No, the fact that the data did not belong to the individual, but to the company (i.e., the property rights/tresspass doctrine), didn't mean that the individual was without some entitlement to privacy from the government. No, the fact that the individual's movements and location in public might be observed by members of the public (i.e., public access doctrine), didn't mean that he had no legitimate expectation of privacy from government surveilance. Etc.

Yes, acknowledged Roberts, the Court's opinion six years earlier in U.S. v. Jones, authored by Justice Scalia, did assert that the warrantless monitoring of a suspect's movements and location was unconstitutional because the police had "tresspassed" on his property--i.e., by attaching a GPS device to his vehicle without his consent. But, the Chief Justice pointed out that a majority of the Justices in Jones had actually reaffairmed the Katz "legitimate expectation of privacy" doctrine. There was Justice Alito and the 3 liberals who joined his concurring opinion, stridently rejecting Scalia's tresspass analysis in favor of Katz; and Justice Sotomayor who authored a separate concurrence, joining Scalia but also reaffirming Katz.

As Roberts explained in declining to apply some of the previously adopted doctrines, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements." He went further: "Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume[] the risk' of turning over a comprehensive dossier of his physical movements."

The concerns expressed by the Chief Justice in his majority opinion sounded much more like those of the liberal Justices who had previously dissented while the Court was diluting search and seizure protections. And Roberts' conservative collegues in this case understood that and objected to his aligning with the liberals in refusing to apply those law and order doctrines. Carpenter v. U.S., 2018.
[For more on the Carpenter decision, see The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone, June 26, 2018.]

There are other cases--an increasing number of them at that--where Chief Justice Roberts has indeed established a distinct pattern of parting with his usual ideological allies on the Court and siding with the liberals to form a majority on some major, highly-charged issues. That point, I believe, has been well made, and continuing further is not only uneccessary but perhaps fatiguing. So we shall end here.

Of course, decisions handed down by the Court in the next few days, as the current term comes to a close, may well make all of the foregoing seem like wishful thinking based on a a few isolated exceptions. But the pattern is there, it is clear, and there no particular reason to think that it won't continue.

Supremely Awful Arguments: Constitutional Nonsense (Part 4--"Activism")

Criticizing [that awful, illegitimate, undemocratic] "Judicial Activism"

(Yes, it's been a while. Corruption trials, the selection process for a new Chief Judge, commentary and presentations on that and the courts (i.e., lots of talking). That on top of classes, students, and a crazy, hectic semester overall. But, concededly, loving it all.)

Now, on to the nonsense about "judicial activism." That is, the customary condemnation of it.

It's as though the judicial branch is supposed to exercise its role halfheartedly. Less fully and vigorously than the other branches. Why has this nonsense--yes, again, it's nonsense--gained currency?

Are there stupid decisions? Yes. Deceptive decisions? Yes. Unintelligible decisions? Yes. Unsupported and unjustified decisions? Yes. But criticize the Supreme Court, or any other court, for vigorously--"actively"--exercising the judicial role? Especially when the judicial role is exercised in the service of fundamental principles of American free government?

Let's consider some of the most "activist" and, at the time, maligned decisions of the Supreme Court. And let's ask which ones were wrong? Which ones were illegitimate exercises of raw, unbridled judicial power that should be curbed? Which ones should be undone?

Brown v. Board of Education (1954): outlawing racial segregation.
That decision overruled precedent that had endorsed the "separate but equal" doctrine. (I.e., Plessy v. Ferguson [1896] and the numerous decisions that followed.)
That decision invalidated state laws that kept the races segregated.
That decision rejected a narrow, "restrained," "originalist" interpretation of the Constitution's 14th Amendment equal protection guarantee, which never would have been ratified in 1868 if its express intention was to end segregation.
That decision's companion (Bolling v. Sharp, decided the same day) invalidated segregation in the District of Columbia and the federal government generally, even though the Constitution's only equal protection clause explicitly applies only to the states.
That decision did what the Congress and many of the states were unable or unwilling to do through the democratic process.
That decision overturned the longstanding, societal status quo in this country.
That decision gave full force and effect to the constitutional principle of equal treatment, despite the equal protection clause's much more limited specific purpose.
That decision was so unpopular in many parts of the country that President Eisenhower had to send in the troops--including the 101st Airborne--to enforce it.

In short, that decision was as "activist" as an activist decision can be.
Does that make it a bad decision?
An illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?
An America without the Brown decision?

Let's try another.
Gideon v. Wainwright (1963): guaranteeing the right to counsel in all criminal trials.
That decision overruled precedent (Betts v. Brady [1942]) in which the Court had rejected any such right to the assistance of counsel in non-capital cases.
That decision invalidated state laws that guaranteed the assistance of a lawyer only when a defendant faced the death penalty or in other limited circumstances.
That decision extended the term "due process"--applicable to the states through the 14th Amendment--to include the right to counsel in all criminal cases, even though that Amendment does not mention any such guarantee.
That decision gave full force and effect to the right to counsel as a fundamental right, recognized by Justice Cardozo in dictum in Palko v. Connecticut (1937) as being implicit in the American scheme of ordered liberty, because essential to fairness in criminal prosecutions.
That decision was extremely unpopular in several states, especially in the South, and was among the series of criminal justice rulings in the 1960's for which "law and order" politicians condemned the Court as being activist, pro-criminal, and violative of state prerogatives.

Another bad activist decision?
Another illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?

And what about this next one?
Loving v. Virginia (1967): guaranteeing the right to marry to interracial couples.
That decision overruled precedent (Pace v. Alabama [1883]) in which the Court had upheld laws that criminalized marriage and sexual relations between whites and non-whites.
That decision invalidated state laws (16 such anti-miscegenation statutes in the South), such as Virginia's so-called "Racial Integrity" law, which the couple had violated in this case.
That decision was another that rejected a narrow, "restrained," "originalist" interpretation of the 14th Amendment's equal protection guarantee, which never would have been ratified in 1868 if its express intention was to allow interracial marriage.
That decision overturned the longstanding, societal status quo in the Southern states and, as a de facto matter, in much of the country.
That decision contravened "states rights."
That decision was contrary to overwhelming public opinion in the country, with only 20% approving marriage between blacks and whites at the time (according to Gallup).

Another one of those bad, illegitimate, activist decisions?
Country would be better off without it?
Should be undone?

What about these--just to mention a few more that make (what I believe to be) the incontrovertible point?
Pierce v. Society of Sisters (1925): protecting parents' right to send their children to private religious schools rather than public ones--interpreted "due process" and "liberty" to include the right of parents to raise their children, which the Constitution nowhere mentions; invalidated all state laws requiring that children attend public, not private schools; simultaneously overrode the popular anti-immigrant sentiment (white supremacist, anti-Catholic, anti-Semitic, etc.) underlying those laws; rejected the claimed power of states to dictate all education retirements; disregarded (and effectively overruled) precedents that the 14th Amendment did not protect any implicit rights or liberties against state governments.
NAACP v. Alabama (1958): protecting the right to associate with others--invalidated state laws interfering with the freedom to join groups with like-minded persons; recognized a freedom of association nowhere mentioned in the Constitution; broadly interpreted free speech as including a fundamental right to associate with others for the purpose of advancing beliefs and ideas; broadly interpreted "liberty" and "due process" in the 14th Amendment as including such rights to be applicable against the states; in short, recognized an unenumerated  right to join groups with like-minded individuals.
Reed v. Reed (1971): invalidating gender discrimination against women--overruled a long line of precedents (e.g., Bradwell v. Illinois [1973], which allowed states to prohibit women from becoming lawyers);  invalidated countless state laws that treated women unequally; rejected a narrow, "restrained," "originalist" interpretation of the equal protection guarantee; rejected the longstanding, societal status quo that confined women to traditional roles; and effectively adopted the gender equality mandate of the ultimately-failed ERA (Equal Rights Amendment) as a matter of constitutional case law.
Lawrence v. Texas (2003): recognizing the right of adults to engage in consensual sex in private, absent some counterbalancing legitimate government interest--invalidated state laws that criminalized "sodomy" (i.e., anything but vaginal intercourse), based solely on moral, religious, and biblical condemnation; overruled precedent (the shameful Bowers v. Hardwick [1986] decision) that had upheld such "sodomy" laws as applied to same-sex couples, again based solely on moral, religious, and biblical condemnation; rejected a narrow, "restrained," "originalist" interpretation of "liberty" that would limit it to freedom from physical restraint; rejected popularly enacted restrictions on intimate private conduct, absent some legitimate government/societal interest in health, safety, or welfare.
(Yes, there are those who view homosexuality as wrong for moral, religious or other reasons, and those who support laws against homosexual conduct. But whatever one's views on that specific issue, the sole principle enforced in the Lawrence decision--that the government has no business interfering with the most private aspects of our lives without some good reason--is nothing less than one of the essential foundations of American free society.)

And there are countless other examples where the Court gave effect to what we cherish most about being American. Rights that we take for granted today, but which became reality only because of "activist" decisions that were typically unpopular at the time.

Make no mistake, "activist" decisions are hardly confined to politically liberal outcomes. Just a couple of recent ones (actually 3) makes the point.
Citizens United v. Federal Election Commission (2010): recognizing a right to finance the production and distribution of a political communication--invalidated federal law (and similar state laws) that limited independent campaign spending; overruled precedent that had approved campaign finance restrictions; rejected a narrow, "restrained," "strict" interpretation of the 1st Amendment's protection of "speech;" protected spending money on political communications as a 1st Amendment right; repudiated popular and democratically enacted measures intended to curb campaign corruption.
McDonald v. City of Chicago (2010) and District of Columbia v. Heller (2008): recognizing an individual right to bear arms assertable against the federal and state governments--invalidated numerous federal and state laws limiting gun ownership; overruled precedent that had confined gun rights to the context of state militias and that held that 2nd Amendment rights were not assertable against state governments; broadly interpreted "liberty" and "due process" in the 14th Amendment as including individual gun rights.

One more thing about which to make no mistake. Whatever one might think about the foregoing politically conservative examples of judicial activism, there are certainly "activist" decisions that are part of the junk heap of discredited rulings. Just as "activism" doesn't necessarily result in a bad decision, it hardly insures a good one either.

A few examples? Check these out.
Lochner v. New York (1905): denying the power of states to adopt health regulations setting maximum hours for workers--invalidated New York's (and by implication any other state's) health laws that limited the number of hours employees [in this case, bakers] could work; broadly interpreted "liberty" and "due process" in the 14th Amendment as including the "right of free contract" that largely prevented states from regulating working conditions; repudiated the health concerns underlying the law that had been affirmed by the state's highest court.
(N.B., Justices John Marshall Harlan and  Oliver Wendell Holmes each wrote dissenting opinions and, for that and other reasons, it is not surprising that this decision was eventually overruled.)
Hammer v. Dagenhart (1918): denying the power of Congress to place limitations on child labor--invalidated the federal Child Labor Act of 1916 that enforced restrictions on child labor; adopted a novel, tortured reading of the interstate commerce power as not reaching manufacturing; rejected popular, democratically enacted health and safety protections for children, in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and another dissent of Justice Holmes was vindicated.)
Adkins v. Children's Hospital (1923): denying the power of government to set minimum wages--invalidated the federal (and by implication any state's) law setting minimum wages for workers; broadly interpreted "liberty" and "due process" in the 5th Amendment as including the "freedom of contract" that largely prevented the federal government from regulating working conditions; adopted a tortured distinction between the (by then) accepted governmental power to set maximum hours and the disallowed power to set minimum wages; rejected popular, democratically enacted labor protections [in this case for women and children] in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and yet another dissent of Justice Holmes was vindicated.)

Finally, the point of all this is that the judicial "activism" argument is nonsense. Whether a decision is "activist" or not does not necessarily have a whit to do with whether it's a good or bad one, wise or foolish, enduring or fleeting, cherished or discredited.

A judicial decision may overrule precedent or not; may invalidate legislation or not; may be contemporaneously popular or not; may adopt a strict or "loose" interpretation, a traditional or novel one; etc., etc., etc. But none of those characteristics of "activism" or "restraint" are very helpful in assessing a judicial decision. Decisions with any combination of those qualities may be good ones or bad ones.

As is usually true for most serious matters, the whole question cannot be resolved with simplistic dichotomies. I did my best to address the matter a few years ago.  I'm not sure I can improve upon my admittedly unoriginal and not wholly satisfactory sentiments at the time. So, in conclusion, here they are:

To deny that bold exercises of judicial activism have produced some of our proudest and wisest landmarks...is either blind ideology, woeful ignorance, or some other specie of nonsense. The American experience with judicial review emphatically demonstrates that activism and restraint are not helpful as dividing lines between good and bad judges, worthy and flawed decisions. 

[W]hen we talk about judges, when we talk about decisions, the qualities that count are wisdom, foresight, discretion, a sense of history, an appreciation of the possible, pragmatism, fairness to the parties, promotion of the common good, and dedication to the fundamental principles of the American constitutional republic. That, of course, is what judging is all about; those are the kinds of qualities that make a good judge and a worthy decision. 

(Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, Vol. 68, No. 3, 2005 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142071])

Supremely Awful Arguments: Constitutional Nonsense (Part 3)

Textualism, literalism, or that's not exactly what it says

There are several variations on this theme:
"Just apply the plain language"
"The language is clear, so don't change it"
"It means what it says"
"It says what it means"
Etc., etc., etc.

Sounds good, sensible, easy.
Stop the Justices from twisting what the Constitution actually says and means.
Just stick with the text as written by the Framers.
Don't add or change anything.

Oh, really?
Even if the result is absurd? Dangerous? Suicidal for the community or the nation?

Now that wouldn't happen, would it?
That's an exaggeration, isn't it?
By just applying the text, the wording, the very language of the Constitution?

Oh yes!
And that's one of the major reasons why an insistence on textualism, literalism, "just apply what it says" is pure constitutional nonsense.

Let's delve into the Constitution.
Actually, don't need to do that.
Let's start at the very top of the Bill of Rights.
Right there in the 1st Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." [My emphasis.]
That's what it says. Verbatim.

Let's start with the very first word of that very first amendment.
"Congress."
What about the president?
What about a federal bureaucrat?
What about a federal agency?
What about the FBI?
What about a federal magistrate?
What about a federal trial judge?

May they prohibit free exercise of religion? abridge freedom of speech? of the press?
The 1st Amendment only says "Congress."
So just apply that, and don't add to or change what the amendment literally says?
So Congress isn't allowed to trample on freedom of religion, speech, or press.
But all the other officials and institutions of the federal government may?

Well, thank God, the 1st Amendment has NOT been construed literally, strictly according to its text, its plain language.
Instead, it has been "interpreted" to apply to all government officials and institutions.
Even though "that's not exactly what it says."

But textualism and literalism are even worse than the foregoing suggests.

Let's try the "no law" language in the 1st Amendment.
To begin with, that plain language mentions only "law."
It does not mention executive orders, agency determinations, or judicial decrees, etc. that violate freedom of religion, speech, and press.
So those would be permitted to violate our basic 1st Amendment rights?
Again, thank God, "law" hasn't been literally applied either.

But back to that entire phrase, "no law."
No law? None? Not any?
Really?
Should that text, those plain words, that constitutional language be applied literally?
Exactly what it says?
So no law?
Not even if necessary for the health, safety, welfare, and security of the community and the nation?

No law prohibiting religious human sacrifices? (And let's remember, many if not most religions in history believed in them.)
No law requiring that a deadly sick child be provided life-saving medical health care regardless of the parents' religious objections?
No law forbidding flying into buildings or slaughtering heretics or infidels for religious religions?

No law prohibiting--you know--falsely shouting fire in a crowded theater?
No law prohibiting verbal threats (whether or not carried out)?
No law prohibiting a soldier from telling his military commander, "Go F yourself," when the soldier dislikes the commander or the commander's order?
No law prohibiting an individual from telling national security secrets to an enemy?

No law prohibiting the press from doing so?
No law prohibiting the press from publishing deliberately false stories that ruin someone's reputation?
No law prohibiting the press from publishing child pornography?

And of course we could go on indefinitely--if not interminably.

The point should be clear.
And that's just the very first amendment.

"Congress" means Congress.
"Law" means law.
"No law" means no law.

And yet, thank God, that plain language, that text, has not been literally applied--"interpreted" if you prefer (although it's hardly really that).
Thank God that, instead, over the years the Court (and lower courts and judges) have generally been more reasonable than that.
Thank God that, instead, over the years American constitutional jurisprudence has been concerned with the underlying principles, the broader constitutional concepts--not simply a literal, narrow reading of "plain words"--and not overly concerned with "that's not exactly what it says."

And we haven't even discussed textualism and literalism and plain meaning with regard to those terms in the Constitution such as "liberty," "due process," and "equal protection."
How are those to be applied literally?
What is their plain meaning?
Even if it were a good idea to "just apply the text," how would that be done?
Those terms, and so many others in the Constitution, simply have no fixed, pre-determined meaning.

"Liberty" includes exactly which rights and freedoms? and which does it not?
Then there's the old saw about liberty versus license. That's always clear!

"Due process" literally means the process or procedure that is due, or the right amount, or right amount owed or to which one is entitled.
And that is exactly what? and how much?

And "equal protection" of the laws?
Everyone to be treated equally under the law?
No differences in treatment? No distinctions at all?
Even when those differences or distinctions are entirely relevant? For example, academic ability and admission into state universities? Athletic ability and playing on a state university sports team? Substance abuse and rejection from a highly sensitive government position? Etc., etc., etc.

Oh, of course different treatment based on relevant criteria is fine, perfectly permissible.
But not based on irrelevant criteria--that would be "discrimination," not legitimate differentiation.
Ahhhh, so it's a matter of relevant versus irrelevant.
That's always clear!

So, to start with, "equal protection" really means "equal protection except when differences are constitutionally relevant."
But beyond that, what is constitutionally relevant is not exactly fixed or pre-determined--not by the text; and not by anything else.
Indeed, what is constitutionally relevant or irrelevant has been difficult and controversial throughout our history--and without the slightest help from the constitutional text which says nothing about it.

Consider that the Supreme Court did not rule that race was an irrelevant (and therefore impermissible) criterion for different treatment, at least for segregation, until 1954; and not for marriage until 1967.
It did not rule gender to be an irrelevant (impermissible) criterion for different treatment regarding government benefits, professions, education, etc., until 1971.
It did not rule sexual orientation to be an irrelevant  (impermissible) criterion for some different treatment until 2003; and for marriage until earlier this year.

And none of those criteria, or any seemingly countless others, are even implied in the text of the 14th Amendment's equal protection clause--let alone whether they, or any other criteria, are to be treated as relevant or irrelevant.

Well, we could go on and on with this.
But what should be more than clear without further examination is that the argument for textualism, for literalism, for just applying the plain words is nonsense.

Yes, it sounds right, sounds simple, sounds like the way to rein in a "rogue" judiciary that's "making law instead of just applying it."
But even the slightest examination shows the argument to be thoughtless or silly at best, and mindless or dangerous at worst.

Again, to close, consider textualism, literalism, "just apply the words" as applied to "liberty" and "due process" and "equal protection"--even to the 1st Amendment's terms of "religion" and "speech" and "press."
What is the clear, unmistakable, and specific meaning of each of those that would enable the Court to "just apply the words?"
And even if some of those terms--perhaps "speech"--were susceptible of a specific meaning, should the Court actually limit the Constitution's protection to that? Exclude all other forms of expression?

And then there are terms such as "no law" in the 1st Amendment.
Should the Court just apply the plain meaning of that?
"No law" against any religious, expressive, or press activities regardless of the dangers or risks they present to health, safety and security?

One would certainly hope not.
And certainly hope that those who advocate textualism, literalism, "just apply the words"--and complain "that's not exactly what it says"--would actually consider the realities and ramifications before they spout that utter nonsense.

Supremely Awful Arguments: Constitutional Nonsense (Part 2)

It's not mentioned in the Constitution

(A delay in getting to this one. But, come on: the Saratoga meet!
The Whitney, the Jim Dandy, the Alabama, the Travers, the Woodward, plus, plus, plus.)

So, "It's not mentioned in the Constitution."
Another one we hear all the time.

This one may even be worse than "Leave it to the states" or "to the people." (See Part 1.)
At least those arguments appeal to sentiments of federalism and democracy.
"It's not mentioned" simply appeals to ignorance.
Ignorance about the Constitution itself. About the Bill of Rights. About the very notion of free government.

We hear it whenever the Supreme Court protects a right or liberty--i.e., what the Court rules to be a right or liberty--that isn't specifically identified in the Constitution.
Those who disagree with the decision, be they talk radio hosts or "expert" commentators or Justices themselves, will parrot this one.
It's utter nonsense.

Indeed, the only virtue in this supremely awful argument is that it's bi-partisan and bi-ideological.
Conservative Republicans dredge this one up whenever an unexplicit right they don't like is protected by the Court--e.g., the right of privacy, the right to choose, Miranda warnings, etc.
And liberal Democrats resort to it when the Court protects some unspecified right that they disfavor--e.g., campaign spending, business freedoms, individual gun rights unconnected to state militias, etc.

But whenever the argument is raised, and whoever raises it, it's utter nonsense.

Let's consider the recent Obergefell v. Hodges decision recognizing the equal right of same-sex couples to marry.

"The right to same-sex marriage is not mentioned in the Constitution."
That's what we've heard from those who disagree with the decision, including some of the dissenting Justices.
The correct response to them should be, "Yes, and therefore what?"

The right to marry, itself, isn't mentioned--opposite or same sex.
The right to choose who to marry is not mentioned--opposite or same sex.
The right of a married couple to have sex is not mentioned.
The right of a married couple to have children is not mentioned.
The right of a married couple to raise their children--same.
The right of a married couple to seek advice about raising their children--same.
The right of a married couple, or anyone else, to have friends--same.
To join a group--same.
To have friendly gatherings--same.
Even to have family gatherings--same.
Etc., etc., etc.

Would anyone doubt that all of those are pretty basic rights?
Essential aspects to life in a free society?
Would anyone think that government in America should be permitted to deny them with impunity?
Deny them without some very very strong reason, like public health or safety or some other societal necessity?
Even though none of those rights are mentioned in the Constitution?
Even though none of them are even implied?

Well, except for the word "liberty."
That word is in the Constitution a few times.
But nothing more specific than that to refer to any of those unmentioned rights.

Benjamin Cardozo helped explain the notion of basic rights--mentioned or unmentioned--in the Supreme Court's 1937 decision in Palko v. Connecticut. His opinion is the foundational expression in American law for determining which rights are "fundamental" and, therefore, constitutionally protected from violation by any government--federal, state, or municipal.

The critical point, as Cardozo put it, is whether a claimed right is "implicit in the concept of ordered liberty." Whether a claimed right is "essential" to a free and just society.
Not whether it happens to be one of the few guarantees actually listed in the Bill of rights.

Indeed, we nearly didn't have a Bill of Rights because of fear that the "it's not listed" or "it's not mentioned" argument would be raised in the future. The Founders and Framers were worried that, by listing some rights, those freedoms that were left unspecified might later be denied.

Yes, ultimately the arguments favoring a Bill of Rights--e.g., that a partial list was better than none at all--won the day. (See e.g., Jefferson's correspondence with Madison on the subject of a "declaration of rights.")
But the fears about the "it's not mentioned" argument have become reality.
That argument is precisely the nonsense we hear regularly about rights not specified in the Bill of Rights.

But the "it's not mentioned" argument  is even worse than the foregoing suggests.
In an effort to foreclose such an argument, a provision was added to the Bill of Rights. The 9th Amendment. That addition makes clear, in no uncertain terms, that the list of rights specified in the Constitution is necessarily very limited, and that unlisted rights are not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's not mentioned" argument.
It was his more delicate way of saying that that supremely awful argument is utter nonsense.

Of course, not every right that might be claimed is deserving of constitutional recognition and protection--i.e., is implicit in and essential to the American scheme of liberty.
But the fact that such a right is not "enumerat[ed] in the Constitution" is irrelevant.

Now, before concluding, let's be clear that the "it's not mentioned" argument is not the sole province of conservatives and Republicans. Liberals and Democrats resort to this utter nonsense as well.

Let's take campaign spending.
The dreaded Citizens United decision.
Right or wrong, wise or foolish, the fact that spending money on political campaigns or issues is unmentioned in the Constitution is itself irrelevant.

Yes, the 1st Amendment speaks of free "speech." And spending money on political campaigns or issues is not speech.
No, it certainly is not.
But picketing--e.g., to protest a company's low wages--is similarly not mentioned in the Constitution, nor is it exactly speech either.
Marching--e.g., against the Boy Scouts' or other private organizations' discrimination against gays and lesbians--is not mentioned and not exactly speech.
Wearing some symbol--e.g., a black armband to protest war or a red ribbon to support AIDS research--is not mentioned and not exactly speech.
Burning the American flag--for whatever reason--is not mentioned and not exactly speech.
Etc., etc., etc.

Yes, all of those activities are engaged in for the purpose of expressing support or opposition or other opinions.
But the terms "expression"and "activity"are nowhere to be found in the 1st Amendment.
It specifies only "speech."

Well, it might be asserted, but aren't all those "expressive activities" kind of part of the broad notion and purpose and principle of free speech?
Indeed!
And so is spending money to produce a political documentary--just like the one at issue in Citizens United.
And so is spending money in support of a political party or candidate.
They are ways of expressing one's views, akin to speech.

To be sure, there may be some very strong arguments for limiting such political spending.
But not because "it's not mentioned."

There are strong reasons for limiting or prohibiting some expressive activities.
For some, the reasons are clear--e.g., setting fire to property to express opposition to the owner's bigotry or to police brutality.
But the fact that picketing and marching and wearing a symbol and burning the flag--and campaign spending--do not happen to be specifically mentioned in the Constitution is a wholly illegitimate reason for rejecting a claim that they are, or ought to be, protected constitutional rights.

Regardless of the possible reasons for limiting or prohibiting certain expressive activities, the "it's not mentioned" argument is not one of them. That argument, whether applied to expressive activities or the right to privacy or any other unspecified right, is utter nonsense, devoid of historical or constitutional basis.
In fact, it's contrary to both.


Next up: a related supremely awful argument--"Textualism, literalism, or that's not exactly what it says."

Supreme Blockbusters Coming (Part 4--Confederate Flag [now decided])

The Court released its decision in the Confederate flag case Thursday morning while I was working on this post.
Of course, I would have correctly predicted the ruling.
Not really.

Seems that I was giving the Justices more credit for neutral decisionmaking than they deserve--and I don't think they deserve much to begin with.
Bottom line: the 4 liberal Justices voted against the Confederate flag; 4 of the 5 conservatives voted for it; Justice Thomas (the Court's sole African-American) voted with the liberals on this one.

Let's get to the case itself and the specific legal ruling:

Texas allows specialty (so-called "vanity") license plates as selected and even designed by motorists.
The Sons of Confederate Veterans (Confederate Sons), an organization honoring soldiers who fought for the South, wanted a specialty license plate with a design depicting the Confederate flag and identifying the organization.
Texas, through a board of its motor vehicles department, rejected the request.
The basis for the rejection was the board's standard that "it might be offensive to any member of the public."
The Confederate Sons claimed that the rejection was a violation of free speech.

The federal appeals court (i.e., the 5th Circuit) agreed with the Confederate Sons.
But the U.S. Supreme Court reversed and, instead, sided with Texas.
It did so by a 5-4 vote. (Walker v. Sons of Confederate Veterans, decided 6/18/2015.)

As already noted, all 4 liberal Democratic Justices (Ginsbug, Breyer, Sotomayor, and Kagan) supported the state's rejection of the Confederate flag design.Their 5th vote, making them the majority, came from the Court's only African-American, Justice Thomas. In the past, he has understandably made clear his strong hostility to symbols associated with racism.
The other 4 conservative Republican Justices all supported the Confederate Sons' claimed free speech right.

Hmmm.
Liberals all against the Confederate Sons; conservatives (except Thomas) for them.
Just another one of those coincidences.
Another one of many similar ones with this Court.

My own expectation was that the decision would be the opposite. And that the vote would be 6-3 or 7-2 in favor of free expression rights for the Confederate Sons. Or stated differently, against the state's right to engage in viewpoint discrimination.

I underestimated the ideological tug this case would exert on the Justices.
Not the tug for or against free expression rights.
But sympathy versus hostility for the Confederate flag and, maybe, for the Confederate Sons who wanted to display it.
Or perhaps it is entirely coincidental that the 4 liberal Justices weighed all the legal considerations--pro and con free speech--and just happened to reach a decision against the display of a Confederate flag design.
And entirely coincidental that 4 conservative Justices--only Thomas missing--would weigh the very same free speech considerations and just happen to reach a pro-Confederate flag decision.

Let's be real. What are the odds that these results are purely coincidental? That views and feelings about the Confederate flag, or about those who wanted to display it, played no part in the votes?

Now what about the actual legal/constitutional issue in this case, and the competing legal/constitutional arguments?

The question the case formally presented to the Court was whether the personally selected expressions on the specialty or "vanity" license plates are "government speech" (i.e., Texas speaking), or that of the motorists who selected or designed the special expressions for their plates.

If the specialty expressions are those of the state, then the state can pick and choose what it would like to say. A state could freely choose not to display a Confederate flag on its license plates--just as the Texas motor vehicles department chose not to do.
But if the specialty expressions are those of the motorists who selected or designed them, then their free speech rights are triggered. The motorists would be free to express their viewpoints--unless they involved obscenity, violence-incitement, or other unprotected speech.

So, are the personally selected expressions on the Texas specialty or "vanity" plates Texas speaking or the motorist speaking? That was the legal issue on which the Justices split.

The precedents, as one might expect, can support either position:
Pleasant Grove City v. Summun (2009)--the city, which accepted privately donated monuments for its park, had the right to reject a monument to the "Seven Aphorisms of the Summun Church." Held to be "government speech," 9-0 decision.
Rust v. Sullivan (1991)--the federal government, which provides medicaid for indigent health services, has the right to prohibit health care professionals providing such subsidized care from advising about abortion services. Held to be "government speech," 5-4.
Rosenberger v. University of Virginia (1995)--the state university, which funds student activities, could not refuse to fund an Evangelical Christian student group's religious magazine. Held to involve the student group's protected free speech, 5-4.
Wooley v. Maynard (1977)--the state, New Hampshire, could not stop Jehovah Witnesses from covering the state motto, "Live Free or Die," on the license plates on their cars. Held to involve the objectors' protected free speech, 6-3.

As noted in the dissenting opinion authored by Justice Alito, Texas had already allowed over 350 different logos and designs on specialty or "vanity" plates. They ranged from the names and logos of schools, colleges, universities, and countless organizations and sports teams (including out-of-state competitors of Texas teams), to favorite recreational activities, soft drinks, and foods.

Alito posed the question: Would anyone "really think that the sentiments reflected on these specialty or "vanity" plates are the views of the State of Texas and not those of the owners of the cars?"
I'm with Alito on this question at least, and I would have voted with him and Roberts, Scalia, and Kennedy on that particular point.
It seems a wholly unrealistic stretch to label the logos and designs, which are personally selected, by private motorists', and appear on the license plates on their own cars, to be the state speaking--"government speech."

Consider this.
There is currently another case in which North Carolina has allowed "Choose Life" on the specialty or "vanity" plates. But the state will not allow "Respect Choice." In short, it has allowed its motorists to display an anti-abortion viewpoint, but not a pro-choice one.
The federal appeals court (i.e., the 4th Circuit) unanimously disagreed with the state. It disagreed that this was a case involving "government speech." Instead, the court ruled that the state had violated the motorists' free speech rights by engaging in "blatant viewpoint discrimination." (ACLU v. Tata [2014].)

So how would the liberal Justices of the Supreme Court view the state's refusal to permit motorists to express pro-choice sentiments? Especially while the state allowed other motorists to express pro-life ones? Would the liberal Justices simply view the state's political viewpoint discrimination as valid "government speech," or would they recognize it as unconstitutionally favoring some free speech over others?

But, as they say, that's not the end of the story.

Finally, few people deplore the displaying of the Confederate flag more than I do. To me, as to others, it is a symbol of the fight to maintain slavery and of the later opposition to civil rights.
[Yeah, okay, it reflects "states rights"--to retain slavery and to continue racial segregation and discrimination.] And to me, and others, it persists as an expression of subtle and not-so-subtle racism and white supremacy, nostalgia for the pre-Civil War way of life in the South, and hatred for the "Northern aggression"that ended it--uhhhh, the "Northern aggression" that ended slavery and later imposed racial integration.

Bob Jones University v. U.S. (1983) is a case I believe is relevant and helpful here. In that case, the Supreme Court rejected the church-related university's claim for tax deductions. The Court did so because the university promoted and practiced beliefs of racial discrimination. Although such deductions were generally available to educational institutions, the Court ruled that the nation's fundamental policy against racial discrimination outweighed whatever religious liberty interests of the university were at stake.
[BTW, the Court's opinion was authored by conservative Nixon appointee, Chief Justice Warren Burger; the sole dissenter was William Rehnquist, who Reagan later appointed to succeed Burger as Chief.]

As in the Bob Jones case, it would seem that the Court in the Confederate flag case could have once again recognized a fundamental policy interest in eradicating vestiges of racial discrimination, segregation, and slavery--of hateful symbols that undermine the quest for greater racial harmony.
Instead of engaging in the fiction--absurd to me, as it was to Alito &co. in the dissent--that the personally selected and designed expressions on specialty or "vanity" license plates are the state speaking (the so-called "government speech"), why not simply recognize them for what they are? They are private expressions.

But they are private expressions on a government-sponsored forum--i.e., on the government-offered and sponsored specialty or "vanity" plates.

Free speech is not absolute, and the government need not sponsor speech--i.e., it need not produce and offer license plates--that celebrate or promote what is antithetical to fundamental policy values.
Government certainly need not offer or sponsor a forum for expression that promotes or celebrates hatred, violence, or other anti-social attitudes or conduct.
Individuals certainly have the right of free speech to express homophobia, xenophobia, misogyny, racism, and the like. But they have no right to have the government sponsor such expression on a government created and offered forum.

The dissent in Walker seems to have been right in concluding that the personally selected expressions on specialty or "vanity" plates is private expression, and not "government speech."
Nevertheless, it still seems that the the state's rejection of the Confederate flag design was valid.
But not because the personally selected expressions on these license plates are "government speech."
Rather, because the government need not sponsor expressions that promote or celebrate beliefs that are inimical to our fundamental national policies against racial discrimination, racial segregation, and slavery.
And again, let's be frank, the Confederate flag is tied to all of those.
Government surely need not assist in the display of a symbol that reflects all of those hateful institutions.

Instead of adopting the "this is 'government speech'"fiction--and not a very convincing one--the majority in the Confederate flag case should have acknowledged that the free speech rights of private expression were at issue. But that they were outweighed by the state's, and society's, fundamental policy interests.

Consider the implications for the North Carolina case previously mentioned--i.e., the state allowing "Choose Life" but disallowing "Respect Choice" on license plates.
Applying the "government speech" analysis of the Confederate flag case would result in upholding North Carolina's viewpoint discrimination against pro-choice expression.
On the other hand, recognizing that specialty or "vanity" plates entail private expression would result in prohibiting the state from abridging the free speech rights of pro-choice advocates.
To succeed, the state would need to demonstrate that there is some overriding fundamental policy against a woman's right to choose.
Of course the state could not do that, because the right to choose is a protected constitutional freedom.

One last thing.
The legal reasons a court adopts for reaching its decisions matter.
Often those reasons matter much more than the result in the particular case.
Those legal reasons are applied in all the cases that follow.
The Supreme Court majority's reasons in the Confederate flag case--i.e., "government speech"--will now be applied in many cases coming before federal and state courts and agencies around the country.
That is most unfortunate. Many of those results, like the reasons given in the Confederate flag case, will be wrong.
And lots of free speech--under the guise that it is "government speech"--will suffer.

Supreme Court, 2013-14 Term: Quick Recap (Part 3: a few more cases)

To conclude this series, here are 3 additional significant decisions--one that I should have included in part 1, and two others that don't fit very well in either part 1 or 2.

Supreme Court, 2013-14 Term: Quick Recap (Part 1: civil rights and liberties)

The Court finished its term Monday. The decisions announced that morning, in the cases dealing with the contraceptive mandate and union dues, were the final two in a veritable whirlwind the past few weeks.

Out of the 70 or so decisions rendered this term, let's take a quick look at some of the most significant. "Quick" as in a very brief bare-bone recap of each. And "significant" as in cases involving issues of liberty and order, rights and responsibilities, equality and justice that are basic to a free society--the ones most of us are interested in, not just lawyers and businesses.

We'll do this quick recap in 2 parts, civil and criminal. Later, we'll look at these cases more closely. I.e., votes, meaning, impact, precedential ramifications, etc.
(We'll also be reviewing some of the significant decisions rendered by the New York Court of Appeals this year .)

Supreme Court's New Term: Headliners & Possible Blockbusters (Part 1)

The Court's new term has begun in full swing. Since the first Monday in October--the Court's traditional opening session of arguments--the Justices have been confronting headline issues that could generate blockbuster decisions.

Campaign finance. Abortion clinics. Town prayers. Affirmative action. Warrantless home searches. Presidential recess appointments. Those are among the controversial matters already on the Court's docket.

Let's take a quick look at those cases. We'll start with a few that pose questions under the First Amendment.

[I've been talking a lot about these cases. So, for those who'd prefer--or would like to supplement this post--I've placed links to a couple of radio and TV interviews at the end.]

Campaign Finance (McCutcheon v. Federal Election Commission)
In the 2010 Citizens United decision, the Court upheld a First Amendment right to spend money to finance political communications--in that case, a documentary critical of Hillary Clinton. By a bare majority, the Justices ruled that the restrictions on such expenditures, imposed by the McCain Feingold Law, violated free speech.

The McCutcheon case this term deals, not with expenditures per se, but with contributions to political parties or candidates. The McCain Feingold Law imposes various limits on the amount of such contributions allowable.

Are the restrictions on contributions also invalid? Do they violate free speech just as the restrictions on expenditures were held to do in Citizens United?

The decision may well rest on whether any of the conservative Justices believe that unlimited contributions made directly to political parties or candidates create a much greater risk of corruption than do expenditures made for independent communications.

[final of] Roberts in the Middle: The Chief Justice as Moderate (Part 3--Concurring Opinions)

Source: reason.com

"Chief Justice John Roberts Splits

the Baby, " by Ed Krayewski

6/29/12

Rejecting a hard-line view, whether conservative or liberal, the Chief Justice has sometimes authored or joined a separate concurring opinion.
[The photo on the left is from "Chief Justice John Roberts Splits the Baby, " by Ed Krayewski, on reason.com, 6/29/12.]

In the last post, we looked at a few cases where Roberts was in the majority, endorsing a position more moderate than that taken by other conservative Justices, or by liberals on the Court. Let's take a look now at some cases where he similarly took a more moderate position, but did so by clarifying, emphasizing, or distinguishing his own view in a concurring opinion. That is, where his position--what some might call "split[ting] the baby"--was distinct from that of both the majority and the dissent.

As in those cases discussed in the last post, these cases, with the CJ in a separate concurrence, find him rejecting the dissenting opinion. But they also show him expressing a view that is less rigid, less ideological, and more subtle than that taken by the majority.

As in the last post, let's look at 5 such cases.

Strip Searches

Three of the Court's conservative Justices--the 2 most (Scalia and Thomas) and 1 more moderately so (Kennedy)--took the position that someone arrested and taken to jail for processing and awaiting an initial appearance before a judge can be strip searched for jail-security reasons. This is so regardless of the crime. And regardless of the lack of any suspicion that the person might be dangerous or might possess contraband.

[Here, the person was arrested pursuant to a warrant, for an unpaid fine, for a minor traffic offense. Oh, and he actually had already paid the fine. So he was ultimately released. But not until he was strip searched twice!]

The Court's 4 liberals argued that the strip search was entirely unreasonable and, hence, unconstitutional. The supposed offense was minor, and the arrestee was not suspected of being dangerous or of possessing anything dangerous or illegal.

The Chief Justice (as well as Alito, who wrote his own separate concurrence) voted with the conservatives, thereby giving them the majority. But Roberts wrote a short concurring opinion. He emphasized that the Court's ruling was qualified. It depended on particular facts.

As he noted, there was apparently no alternative in this case to placing the arrestee in the general jail population. Moreover, the narrow issue before the Court, as argued by the arrestee's lawyer, was whether suspicionless strip searches were illegal "no matter what the circumstances."

Roberts concluded his brief concurrence by underscoring the "possibility of exceptions" to the Court's "general" rule--as he put it--"to ensure that we 'not embarrass the future.'”

Violent Video Games/1st Amendment

A collection of conservative and liberal Justices formed the majority to invalidate a California law banning the sale or rental of violent video games to persons under the age of 17. That majority ruled that video games were protected speech under the 1st Amendment, and that there was no real proof that violent video games harmed children or made them more aggressive.

In dissent, a mixed duo (conservative Thomas and liberal Breyer) argued that the law was perfectly permissible. Thomas argued that free speech was not intended to protect the choices of children, but of their parents and other adults. Breyer argued that the violent materials defined by the law are outside 1st Amendment protection--i.e., material "utterly without redeeming social" value--and that studies did show the harm of such games to minors.

The Chief Justice joined Justice Alito's concurring opinion. For them, there was merit to both the majority and dissenting views. But also flaws.

Ultimately, Roberts joined Alito to say that it is constitutional to restrict some choices by children and to allow their parents to make the choices for them. That there is in fact good reason to be concerned about the effects of violent video games on children. But that California was insufficiently clear about which video games actually fell within the prohibition. If the law were clearer, it would pass constitutional muster.

Supreme Court: Wrong on Violent Video Games for Minors

Selling violent video games to minors is protected free speech under the First Amendment.

Yes, selling games, in which players engage in such video conduct as decapitating girls, urinating on victims, and burning enemies alive, is free speech.

Absolutely no exaggeration. That's what the Court held.

Well, that's what happens with a mediocre Court. One that takes a principle (a misconceived principle at that) to its (il)logical extreme. A Court that is unable or unwilling to make distinctions.

The decision, in Brown v. Entertainment Merchants, issued a few weeks ago by the Supreme Court at the very end of its 2010-11 term (October 2010 Term), is as revealing as it is ridiculous. Let's take a look.

California enacted a law prohibiting the sale of violent video games to minors. "Violent" was defined in the California law as "killing, maiming, dismembering, or sexually assaulting" a human in the video game. The majority of the Justices held that the law violated free speech. Repeat: free speech. That's right. A law against selling violent video games to minors violates free speech!

SPEECH vs. EMOTIONAL INJURY--Supreme Court: Right on the Funeral Protests, Part 4

[Back! Semester's end, exams, grading, tedious admin chores, time with the youngest son graduating from college and preparing for graduate school, etc., etc., etc. And yes, some R & R, including a trip to Kentucky for a visit to Churchill Downs and for some local bourbon. 

Now it's back  to this blog. So much to discuss: New York's Marriage Equality (If we can get it done here, we can get it done anywhere ! Bravo to my home state, striking a blow for civil rights and against nonsense.), the Supreme Court's latest decisions, the year in review, the Justices' records, ditto for the NY Court of Appeals and its Judges, and so much more. But 1st, one last consideration of free speech related to that funeral protest case.]

Consider these 2 statements:

1) Your mother is a whore and she's going straight to hell.

2) Your mother is a whore and she's going straight to hell.

Yes, the words are the same. But let's give them different contexts.

For the 1st, the speaker is at a private neighborhood party, saying this loud enough so others can hear, angrily addressing the mother's son whom he dislikes for personal reasons. The speaker actually believes what he is saying, but he is mistakenly relying on a vicious, false rumor.

UNPROTECTED "SPEECH"--Supreme Court: Right on the Funeral Protests, Part 3

[Been swamped with other matters since the last post. Among those of possible interest to the readers of New York Court Watcher is the Center for Judicial Process. The now reorganized and reactivated Center, accessible through the link on this blog or directly at http://www.judicialprocessblog.com/, is a forum for research and the publication of studies on courts, judges, judicial decision-making, judicial politics and selection, and all other aspects of the judicial process. Check it out!]

In the last post, we listed several examples of free speech that the Supreme Court has decided are constitutionally protected. Let's reconsider those cases by altering them a bit. The alteration will change the speech from protected to unprotected.

In fact, none of those cases dealt with actual "speech." Instead, they involved activities. But they were expressive activities. Those activities were deemed sufficiently close to actual speech to be included within the 1st Amendment's protection. In short, these activities were considered to be functional equivalents of speech. They were engaged in for the purpose of expressing opinions. The very purpose of the speech that the 1st Amendment was intended to protect.

So, as we've discussed in previous posts, the critical distinction is not between pure speech and activity. The former protected and the latter not. No. It's not about the mere form that the expression takes. Lots of different forms of expression have been deemed by the Supreme Court to be constitutionally immune from government prohibition. Speech itself, marches, parades, memberships, signs, arm bands, billboards, commercials, campaign spending, etc., etc., etc.

But there certainly are distinctions between those expressive activities that the Supreme Court has held to be constitutionally protected and those that are not. Yes, there are differences between protected "speech" and unprotected "speech."

Supreme Court: Right on the Funeral Protests [Part 2--"SPEECH"]

Thank God, the Court has NOT heeded the nonsense about "strict interpretation."

Yes, thank God, when it comes to free speech (as well as other constitutional rights and liberties), that the Court has NOT strictly interpreted the Constitution (but instead has done so rather "loosely"). That the Court has NOT applied the letter of the law (but instead has applied its spirit). That the Court has NOT limited itself to some specific original meaning (but instead has given life to underlying principles).

That the Court has NOT been restrained (but instead has been activist in protecting free speech). That the Court has NOT deferred to the other branches (but instead has been more than willing to invalidate legislative encroachments). That the Court has NOT mechanically applied the law (but instead has revised and, yes, made law to insure that it both makes sense and is faithful to our national commitment to free expression).

Supreme Court: Right on the Funeral Protests

[The first few lines here are from the previously posted Intro.]

Yes, these people are despicable.

What they are saying is moronic, ignorant, bigoted, hateful, vicious. If there is a God, and if He is just, he may have a special place for these people. At least some hereafter reform school as a stopover enroute to eternity.

But governments and rulers are not God. And though they must regularly make judgments, it is an essential ingredient of our American credo that they can't make judgments about our speech.

At the very least, governments in America--federal, state, and local--cannot prohibit or punish the content of our speech. We are free to have our opinions and to say what they are. Whether brilliant or idiotic. Enlightened and learned or bigoted and baseless. Favorable or unfavorable, popular or unpopular, beloved or despised.

Freely speaking our views and opinions. The very essence of liberty. Indeed, an absolute necessity if "liberty" is not to be a cruel joke and a fraud. The matrix of all other freedoms and rights.

Supreme Court: Highlights...(Disclosure--How I Would Have Voted in the Free Speech Values Cases)

Justice William O. Douglas proposed that authors of law review articles and, by extension, other legal analysis and commentary, ought to disclose their predilections. In this way, the reader has a better idea of the possible biases affecting what the author has written. (See William O. Douglas, Law Reviews and Full Disclosure, 40 Wash. L. Rev. 227 [1965].)

I have done so from time to time, in law review articles, live presentations, and in posts here on New York Court Watcher. Particularly when I had strong views about an issue about which I was writing. In the very last post, for example, I made clear my own view about the Court's unsigned majority opinion explaining its decision to stop any televising of the same-sex marriage trial. My strong view is that the majority's explanation was utterly unpersuasive and, perhaps, pretextual.

Supreme Court: Highlights...(Part 4--GRAPHIC Recap of Free Speech & Related Decisions)

In the previous 2 posts in this series on New York Court Watcher, we looked at those 4 decisions among last term's "Top Ten" highlights that dealt with free speech. More precisely, they dealt with free speech and related issues of political activity, association, and open government.

The specific issues in those 4 cases involved corporate spending on political communications (Citizens United), teaching human rights to designated terrorist organizations (Humanitarian Law Project), excluding gays and lesbians from membership in a group based upon religious belief (Christian Legal Society), and the video broadcast of a trial of great interest to the press and the public (Hollingsworth).

Supreme Court: Highlights...(Part 3--More Free Speech & Related Decisions)

In the last post in this series on New York Court Watcher, we explored the Court's decisions in Citizens United (corporate spending on political communications is constitutionally protected free speech) and Humanitarian Law Project (teaching human rights and peaceful advocacy to designated terrorist groups is not). [See Supreme Court: Highlights...(Part 2--Free Speech & Related Decisions), Oct. 8, 2010.]

We now turn to the other 2 decisions, from last term's "Top Ten" highlights, that involve issues related to free speech . One pits free speech and freedom of religion against anti-discrimination policy. The other pits the ability of the public and the press to view a trial of great interest against procedural regularity in changing court administrative rules.

Supreme Court: Highlights...(Part 2--Free Speech & Related Decisions)

In the previous post on New York Court Watcher, we looked at 10 decisional highlights of the Supreme Court's last term. (See Supreme Court: Highlights, Patterns & Implications from Last Term (Part 1), Sept. 29, 2010.) As explained in that post, these are the decisions that seemed particularly important, politically and ideologically charged, and, consequently, particularly revealing. The number 10 was purely fortuitous. An unintended "Top Ten."

Free Speech Addendum; Re: General McChrystal

As we discussed in the last 2 posts on New York Court Watcher, the First Amendment's "no law" language does not really mean no law at all. And the Supreme Court has never so interpreted it. (See Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech]), June 18, 2010; Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution), June 14, 2010.)

In the very last post, we discussed "no law" specifically with regard to free speech. The First Amendment's declaration allowing "no law abridging the freedom of speech" really means "no law abridging free speech except where pretty darn necessary."

So, e.g., a law prohibiting falsely shouting fire in a crowded theater? Yep, allowed. (Justice Holmes's classic example in Schenck v. U.S., 1919.)
A law prohibiting the incitement of violence with vulgar, inflammatory epithets? Yep, allowed. ("Fighting words;"Chaplinsky v. N.H., 1942.)

And the example I always use in class: a law punishing a soldier saying "F__ you" to a commanding officer giving orders, or other such insubordinate speech to a commander? Yep, allowed. (See, e.g., along those lines, Parker v. Levy, 1974.)

Well, the inclusion of that example in the last post turns out to be quite prescient. The remarks of General Stanley McChrystal and members of his staff were a metaphorical "F__ you" to the President (as in the Commander-in-Chief) and some of the President's closest war advisers.

The remarks, revealed in a story to be published in Rolling Stone later this week,
manifested disrespect, disloyalty, insubordination, and even contempt for the General's civilian superiors. Including, again, the Commander-in-Chief--as well as the Vice President, and the President's National security Adviser (former General James Jones).

The point here is not about how inappropriate the comments of General McChrystal and his staff were. Nor about how, if at all, he and they should be disciplined.

The point is that this is a concrete, real, live, today illustration of how the First Amendment's "no law" does not and can not always mean no law. No, not for soldiers speaking to their commanders. And no, not for wartime Generals and other officers speaking about the Commander-in-Chief and their other civilian superiors. All speech is not and can not always be free from laws prohibiting, punishing, and otherwise abridging it.

The even larger point is that Constitutional language cannot simply be strictly interpreted and applied. Can anyone seriously believe that it should be? (Ms. Kagan? Her Senatorial questioners?) Or believe so and accept the ramifications of such a position?

Well, she and her questioners might respond that the Framers of the First Amendment (and, by extension, of the Constitution itself), didn't really intend an absolute freedom of speech. It's the intent that should be strictly applied. Yep, that's it. That's what we really mean. What were the Framers actually thinking at the time? That's what should be strictly applied!

OK. Let's try that. We'll do so in the next post.

But for now, General McChrystal, Ms. Kagan, and Senators on the Judiciary Committee (some of whom seem impenetrable on these issues), "no law abridging" free speech is not nearly as absolute as it sounds. It has not, and sensibly can not, be strictly interpreted and applied. Most notably with regard to soldiers in wartime.

Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech])

Free Speech.

Free: "no law abridging the freedom."

Speech: "of speech."

That's how the First Amendment of the Constitution states it.

Pretty unequivocal: "no law."

Pretty unambiguous: "speech."

So strict interpretation should be simple. Just applying the law rather than making it should be a cinch. Objectively and neutrally enforcing the law, and avoiding one's own opinion of what's wise and reasonable should be a snap.

Well, the only thing that's simple, a cinch, and a snap is that none of those things really are. And THAT should be a fairly easy one for Elena Kagan and for the Senators questioning her.

Strictly interpreting free speech, just applying it, and avoiding one's own opinion is more than difficult. It's impossible. And this is true--even more so--for other provisions of the law that are not as straightforward as the First Amendment. That would include most legal provisions. Indeed, it would include virtually all legal provisions that raise issues difficult enough to make it to the Supreme Court for the Justices to interpret.

So when the Senators ask Kagan about these sorts of matters and insist on strict interpretation, just applying the law, etc., etc., ad nauseam, you know it's the purest nonsense. And if a nominee robotically responds, "I-will-just-apply-the-law-to-the-facts-of-each-case-before-me-and-my-own-personal-views-will-not-affect-my-decisions" [like the previous nominee, now-Justice Sotomayor did at her hearings], you know that is also the purest nonsense.