The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.
Consider, for example, the Supreme Court’s signature cases of the two previous terms. In 2012, the landmark was National Federation of Independent Business v. Sebelius, upholding (mostly) the constitutionality of “Obamacare” and its mandate of individual purchase of health insurance, in the service of centralized government control over health care. In 2013, the dramatic case was United States v. Windsor, creating a federal constitutional right to same-sex marriage, at least where a state has recognized such a right. Windsor portends, clearly enough, the arrival of a national judicial right to same-sex marriage—if, that is, there remain any enclaves of local resistance to what appears at present to be an unstoppable tidal wave. That wave, like Obamacare and its administrative mandates, threatens to swamp and perhaps drown the views and voices of those who dissent, frequently out of religious conviction.
What room is left in our constitutional system for dissent and resistance—or escape—where government power has been construed expansively and deployed aggressively in a fashion that assaults religious and moral conscience? What refuge remains to check government power that seeks to force people to engage in, or act in complicity with, what they reasonably regard as moral wrong or evil?
It is a parlous state of affairs when we must depend on the Supreme Court as the bulwark of our most vital natural rights and civil liberties—freedom of religion, freedom of expression and group association, freedom of conscience, the rights to live, to work, and to raise a family. The Court has not always, or even very often, done well on this score. With distressing frequency, it has performed poorly, shortchanging rights plainly written in the Constitution and inventing illegitimate ones nowhere to be found in the text. The Court tends to bow to political pressure and blow with prevailing cultural and popular winds.
Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, a relief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.
The Case of the Term was, of course, Burwell v. Hobby Lobby Stores. And the Man of the Hour was Justice Samuel Alito, who emerged this year as the most consistent, solid, successful conservative justice on the Court. His opinion for a five-justice majority (Roberts, Scalia, Thomas, and Kennedy) was the most important of the term. Alito did an outstanding job of getting everything right on every critical point while still somehow holding a clean majority together, even the wandering Justice Kennedy. Alito’s opinion made slight concessions and hedges, but none that did material damage to principle. Just as important, Alito’s opinion was not unduly and unhelpfully narrow—the flaw of some of the Court’s other major decisions.
Thirty years ago this past summer—has it really been that long?—I was a student summer law clerk in the solicitor general’s office in the Department of Justice. We had a lousy but boisterous office softball team of swaggering brainiac lawyers. None of us could hit or field very well, but most were big talkers and yellers. Except Sam Alito, a young assistant SG who quietly warmed up, playing catch on the sideline. When the ranking deputy announced the lineup, he calmly announced that Sam would bat cleanup and play center field. Sam nodded. Everybody knew, it seemed. Sam said little, caught everything hit to the outfield, hit two home runs over everyone’s heads his first two times at bat, and then was held to a single and a double once the other side caught on and put six guys in the outfield.
As with softball, so on the Supreme Court. There are louder talkers, flashier stylists, wittier wits, more-poisonous pens, but no one with a more level and solid swing than Justice Samuel Alito. In Hobby Lobby, Alito quietly went four for four, with two homers, a double, and a single. Most important of all, he drove in five.
Hobby Lobby concerned the religious objections of two privately owned businesses to the administration’s requirement that their companies’ health-insurance plans include coverage for abortion-inducing drugs. Such drugs flew under the misleading label of “contraceptives” and were part of the administration’s implementation of Obamacare’s mandate of coverage for “preventative care.” The question was whether the Religious Freedom Restoration Act of 1993 (RFRA) prevented the administration from requiring such coverage regardless of religious objections.
RFRA stipulates that the federal government may not substantially burden any person’s sincere religious exercise, absent a “compelling state interest” accomplished by the “least restrictive means.” RFRA is a sweeping federal super-statute that cuts across and trumps—qualifies and limits—the application of all other federal statutes and regulations. It was enacted to restore the strictest of protections of religious liberty in the wake of the Supreme Court’s weakening of the Free Exercise Clause of the First Amendment in Employment Division v. Smith (1990).
Alito’s majority opinion began with the administration’s argument that RFRA did not apply at all to the businesses in question because they were corporations and therefore could not hold or exercise religious beliefs. Alito ripped this pitch out of the park: RFRA was designed to provide the broadest of possible protections for religious liberty, he wrote. The administration’s argument would create a gaping hole in the statute, inconsistent with RFRA’s language and purpose. It would contradict the general definition in the U.S. Code treating corporations as legal “persons”—a definition carried forward by RFRA. And it was in tension with the Court’s precedents upholding religious-liberty claims brought by nonprofit corporations. Nothing in the text of RFRA supported a different rule for one type of corporation than for another; the administration’s made-up arbitrary line between nonprofit and for-profit entities had no basis in the statute itself.
Moreover, and significantly, Alito’s majority opinion noted that the reasonthe law generally protects corporations as fictitious legal “persons” is “to provide protection for human beings.” Corporations are simply “a form of organization used by human beings to achieve desired ends,” he wrote. “When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.” Thus, “protecting the free-exercise rights of corporations” serves the goal of protecting “the religious liberty of the humans who own and control these companies.”
The administration’s next argument was that, even if a corporation was protected by RFRA, requiring the company’s health insurance to cover abortion-inducing drugs imposed no “substantial burden” on the owners’ free exercise of religion. This was a truly silly, callous argument. Under the administration’s regulations, employers must choose between providing coverage in violation of their religion and paying enormous fines. The Court had “little trouble” concluding that this burdened religious freedom.
What Alito called the government’s “main argument” was even more pernicious: Hobby Lobby was mistaken in thinking that its religious beliefs were actually affected by the government’s policies! The government argued that any destruction of a living embryo resulted from an employee’s decision to use the drug in question, not the employer’s health-plan coverage for such drugs. As Alito’s opinion noted, this was essentially an argument that Hobby Lobby had its religious beliefs wrong—an argument so far constitutionally out of bounds as not to be worthy of serious consideration.
The business owners’ beliefs, Alito wrote, presented a perennial question of religion and moral philosophy: When is it wrong “to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another”? That moral question is a “difficult and important” one, Alito noted. And it was one that should have been familiar to anyone not thoroughly ignorant of, or insensitive to, religious faith. For the government to simply brush it aside was the height of chutzpah: “Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.” The religious business owners—not the government—get to decide what their religious beliefs are and what actions would compromise those beliefs.
This is one of the very most important points in the entire Hobby Lobby opinion. It will have ripple effects in dozens of other cases relying on RFRA to challenge the administration’s contraceptive-coverage mandate. Many of those cases involve religious colleges, hospitals, social services, and other ministries. (Churches and other houses of worship are exempted entirely, but not these other religious groups.) The administration had offered fig-leaf “accommodations” to these groups. They need not themselves provide or pay for abortion-drug, contraception, or sterilization coverage for their employees; but they would still need to sign a form directing their insurance providers to do so, ostensibly “separately.”
It is easy enough to see why this Pontius Pilate–like, hand-washing solution might, for many religious persons and groups, be no solution at all. A simple analogy: If I am ordered by government to arrange for the murder of my friend but am then told my religious objection is wholly appeased by my directing a third person that he must arrange the killing instead of me, I should rightly doubt that this solves my moral problem.
The Obama administration, however, feels that its accommodation should satisfy any conceivably justifiable religious objection, or at least any that the administration feels justifiable. Significantly, Hobby Lobby repudiates this view. Just as the government’s “surely-that-does-not-violate-anyone’s-religious-conscience” argument was roundly rejected in Hobby Lobby, it should be rejected in parallel instances. Alito’s opinion was, on this point too, a home run for religious liberty.
With these points established, two issues remained. Under RFRA, a burden on religious liberty can be justified where government shows it is the “least restrictive means” of accomplishing a “compelling state interest.” The government argued that the contraception-abortifacient mandate served compelling interests in public health and women’s reproductive rights. Alito dutifully noted that argument, as well as the argument on the other side: The Affordable Care Act’s coverage requirements exempt entirely “grandfathered” plans and plans of employers with fewer than fifty employees. How could the interest in mandatory contraception coverage be “compelling” if the law itself left tens of millions not subject to such a requirement?
On this point, Alito settled for a single. “We find it unnecessary to adjudicate this issue,” he wrote. Instead, the Court would “assume” that the government’s asserted interests were compelling, and proceed on to the inquiry as to whether, even on such assumption, the contraceptive mandate was the “least restrictive means” of serving such interests.
Why not press the no-compelling-interest point? The answer is that Alito needed to hold the vote of Justice Kennedy and that this was better accomplished by saying less rather than more, which meant setting aside the compelling-interest question rather than deciding it. Kennedy’s concurring opinion suggests that he thought government might indeed have a compelling interest in mandating contraceptive and abortion-drug coverage, where “necessary to protect the health of female employees.” Kennedy nonetheless joined Alito’s majority opinion in full. Not pressing this point avoided a harmful, potentially even disastrous, split decision.
Alito’s majority opinion next held that, even were the government’s interest compelling, it was not accomplished by the “least restrictive means.” Again, Alito’s opinion does not say all that might have been said, but what it said was terrific and important: Government does not satisfy the least-restrictive-means requirement of RFRA where it fails to employ a less restrictive means that it has been perfectly willing to use in other, analogous circumstances.
This is an important principle for religious liberty. It keeps government from simply asserting, “Our interests are so important that there is simply nothing else we could do than violate your religious liberty to this degree.” Nonsense. There is something else you could do, as illustrated by the fact that you have done itelsewhere and the sky did not fall. In the context of the contraception mandate, Alito’s majority opinion noted the existence of such a less restrictive means: the “accommodation” given nonprofit religious groups not exempted by the statute entirely (as churches are). To be sure, that might not be the least restrictive means. Alito’s opinion specifically reserves that issue for later adjudication, as will be necessary in the cases brought forward by Notre Dame, Wheaton College, the Little Sisters of the Poor, and others.
Justice Ginsburg’s Hobby Lobby dissent for the Court’s four liberals was surprisingly weak, mostly just repeating the administration’s arguments. Ginsburg tried to ground a “right” to have contraception and abortion drugs covered in one’s employee health plan in abortion rights generally, citing Planned Parenthood v. Casey. This is nonsense on stilts, and irrelevant nonsense besides. Even if Ginsburg’s outlandish proposition made sense on its own terms, it would not trump a statutory protection of religious liberty. RFRA qualifies all other federal statutes—including the Affordable Care Act. Whatever “right” to contraception or abortion drugs Obamacare otherwise might be imagined to provide, it is necessarily limited by the religious liberty of others.
Ginsburg also professed alarm at the “startling breadth” of the majority’s interpretation of RFRA, which she charged went beyond the Free Exercise Clause. True enough: RFRA affords a broader protection of religious liberty. And the majority in Hobby Lobby gave RFRA its full, sweeping effect. None of that makes the majority opinion wrong. It merely means, as Alito’s opinion noted at the end, that the dissent’s real objection was to RFRA itself.
It is difficult to overstate the significance of Hobby Lobby. While not a constitutional decision, RFRA is a quasi-constitutional super-statute that provides expansive protection for religious liberty, at least in matters of federal law. The holding in Hobby Lobby thus not only vindicates fundamental rights of conscience, it gives RFRA real force as a check on the powers of the national government.
Three days later, the Court issued an order granting an injunction in one of the cases challenging the shell-game “accommodation” granted to religious colleges. The order relieved Wheaton College of having to direct its insurance carrier to provide abortion-drug coverage to its students and staff, until the college’s appeal could be heard. Obviously, the Hobby Lobby decision was extraordinarily helpful to Wheaton’s legal position. Justice Sotomayor filed a nearly hysterical, unreasoned dissent from the Court’s order. How could the Court grant Wheaton even temporary relief, she argued, when it had just said in Hobby Lobby that the administration’s accommodation of religious colleges was the perfectly proper “least restrictive means” of protecting both religious liberty and women’s rights?
Of course, Hobby Lobby said nothing of the kind. It said that where government can use, and has used, a lessrestrictive means of advancing its purportedly compelling interests, it needs to do at least that much to relieve burdens on religious liberty. Sotomayor treated a minimum as if it were a maximum—either a first-year-law-student rookie mistake (which I doubt) or a deliberate misrepresentation.
If anything, Hobby Lobby should make cases like Wheaton College’s easy: Government must use less intrusive means it is willing to use elsewhere; and government exempts church plans entirely. As Kennedy’s concurrence put it: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” The logic of Hobby Lobby suggests that the “least restrictive means” here is not to conscript religious groups to act in violation of conscience at all.
Overshadowed by Hobby Lobby was another solid 5–4 Alito opinion the same day. Harris v. Quinn involved the right of employees not to be compelled by government to pay “agency” fees to a union. Such fees violate what Alito termed “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
His majority opinion ripped apart, but stopped (just) short of overruling, the Court’s 1976 precedent upholding agency-fee arrangements in public-employee contexts, Abood v. Detroit Board of Education, which Alito found distinguishable. Justice Kagan’s dissent criticized this as artificial and urged adhering to Abood as binding precedent. She had a point. The majority’s distinctions may indeed be artificial, in which case Harris v. Quinn may presage the demise of Abood entirely. This would be a good outcome and an important step in preserving free-speech rights not to speak—specifically, the right not to be forced to provide financial support for someone else’s speech.
As great a success as was Hobby Lobby, McCullen v. Coakley was a great disappointment. The Court got the result right, unanimously invalidating Massachusetts’s thiry-five-foot no-speech zone surrounding abortion clinics. But Chief Justice Roberts’s majority opinion for five (himself and, oddly, the four liberals) made some bad law along the way. Four justices concurred in the judgment only—Alito, writing separately, and Scalia, writing for himself, Kennedy, and Thomas.
The disagreement was over something that really matters. The central command of the Free Speech Clause is that government may not prohibit, punish, or penalize speech on the basis of its message, content, or viewpoint. Laws that restrict speech in this way are subject to the strictest scrutiny and are presumptively invalid.
As Scalia and Alito pointed out, Massachusetts’s law was all about restricting pro-life advocacy by sidewalk counselors seeking to persuade women not to have abortions. The law was neither content-neutral nor viewpoint-neutral. It restricted speech only at abortion businesses, and it restricted one side in a way it did not restrict the other. The law exempted clinic employees when acting “within the scope of their employment.” That meant that within the thirty-five-foot zone clinic personnel could provide welcoming pro-abortion messages but pro-life counselors could not offer opposing messages.
Roberts’s opinion, however, argued that the thirty-five-foot zone, even though limited to areas surrounding abortion clinics, regulated speech based not on content or viewpoint but on location, and that the exemption for clinic employees merely permitted them to do their jobs. The law thus served legitimate purposes unrelated to suppressing speech—public safety and ease of access to abortion businesses—and was therefore to be judged by the less-strict test applied to “time, place, and manner” regulations of speech. Roberts then concluded that the law violated even that more easygoing standard, as the thirty-five-foot zone was not narrowly tailored to its purpose and abridged more expression than necessary.
Roberts’s opinion strains out a gnat and swallows a camel. On the fundamental question of equal treatment of pro-life advocacy, the opinion is awful. His arguments that the restriction is not content-based and viewpoint-discriminatory simply blink reality. In effect, the opinion says that government may abridge anti-abortion speech if it doesn’t go overboard in doing so.
Justice Scalia savaged Roberts for carrying forward the Court’s practice “of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”
Roberts fully deserved the criticism. It is hard to explain his vote in this case. No good practical or tactical purpose, no competing jurisprudential principle, no point of integrity was served by the defection. Had Roberts joined the other conservatives, there would have been a majority to reject content-based and viewpoint-based discrimination against pro-life advocacy. Discrimination against anti-abortion speech has endured too long; Roberts could have driven a stake through its heart, but instead let it live. While McCullen reached the right conclusion, it was a blown opportunity.
Two other important decisions concerned the freedom of citizens to resort to the public political process to resist, refute, and work to reverse policies with which they disagree. In McCutcheon v. Federal Election Commission, the Court struck down federal limits on how much money, in total, an individual can give to support a variety of political campaigns. Chief Justice Roberts wrote for a four-justice plurality (with Scalia, Kennedy, and Alito), working largely within existing campaign-finance case precedents. Justice Thomas, long a critic of the Court’s precedents in this area as too indulgent of what he regards (quite rightly) as restrictions on core political speech, concurred in the judgment only. The four liberals dissented.
Roberts’s opinion is a sweeping reaffirmation of freedom of political speech. It is an important step—but not the final step—in cleaning up an area that has long been a First Amendment disaster zone. His starting premise was exactly right: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” That includes the right to contribute financially to campaigns, just as much as it includes the right to run for office, vote, urge others to vote, or volunteer to work on a campaign.
The McCutcheon plurality was willing to accept, for purposes of argument, the anticorruption justification for capping individuals’ contributions to any single candidate, since those were not challenged. (Thomas would have gone further and not accepted the argument even for the sake of argument.) But the plurality determined that the anticorruption rationale, even if valid, could not justify the aggregate caps on total contributions: “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse,” Roberts wrote.
This seems clearly right. Money is not itself “speech,” but spendingmoney is a way that individuals and groups marshal their resources forspeech. Using one’s resources to support political candidates is therefore part of the freedom of speech. Government should no more have power to regulate the amount of money one spends for political expression than to regulate the amount of time or energy one devotes to political activism and expression.
Justice Breyer’s dissent (for the four liberals) made a startlingly frank argument for government-managed speech in the name of promoting “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.” Put more plainly: Government should have power to regulate speech so as to produce the speech that produces the government that government thinks is correct.
It is awful to imagine the dissent’s political world, frightening that it gained four votes, and an enormous relief that the majority rejected it. McCutcheon was a victory—an incomplete one, to be sure, but an important one—for rights of political dissent and resistance.
So too was Susan B. Anthony List v. Driehaus, nominally a case about standing to sue but in reality a case about vital First Amendment freedoms of political speech. The case involved a challenge to an Ohio law making it a crimeto make or publish a “false statement” in a political campaign. A complaint may be filed by “any person”—including an aggrieved candidate or his backers. This triggers an investigation, a “probable cause” hearing by a government board, and possible prosecution. A first offense is punishable by up to a $5,000 fine and six months in prison. A second conviction is a felony. Vladimir Putin would be impressed.
In the case at hand, a pro-life advocacy group criticized then-congressman Steve Driehaus for supporting Obamacare, labeling his vote one for “taxpayer-funded abortion.” Driehaus cried foul. His campaign filed a complaint, starting the investigation process, and threatened an advertising company should it accept a billboard rental bearing such a message. (The company declined the ad.) A panel of the Ohio Election Commission voted 2–1 to find probable cause that a violation had occurred.
The pro-life group’s characterization of Driehaus’s position was debatable. But isn’t that the point? The First Amendment commits such debates to the political process, not to government-commission truth squads wielding formidable authority.
The Supreme Court, in an opinion by Justice Thomas, unanimously decided that the pro-life group had standing to challenge Ohio’s law and that it retained such standing even though Driehaus was defeated for reelection. The Court did not rule directly on the First Amendment claim, but the tenor of the opinion signals unmistakably a rigorous concern to protect free speech.
Schuette v. BAMN also can be seen as a decision upholding the right to dissent from the established consensus, in this case the right of Michigan voters to adopt a state constitutional provision barring racial preferences in state contracting and university admissions. It took three opinions, none commanding more than three votes, for the Court to reach what should have been an obvious result: Nothing in the Constitution requires state affirmative action in the form of racial preferences, and therefore there is nothing wrong with a state’s repealing a preferences policy that had earlier been upheld (in part) by the Court. That was the straightforward reasoning of Justice Scalia’s concurring opinion (joined by Thomas), which was far more persuasive than Justice Kennedy’s plurality opinion (for three) or Justice Breyer’s solo concurrence. Schuette is a small step for democracy, but no giant leap for clarity.
The term’s winner in the More Heat Than Light category was Town of Greece v. Galloway. Compared with Hobby Lobby, the religious liberty stakes in Town of Greece were quite low indeed. That didn’t keep the justices from spilling eighty pages of ink in opinions debating the propriety of prayers given by local ministers, with specifically Christian content, before monthly town-board meetings. The Court, in a majority opinion by Justice Kennedy (except for one subsection), upheld the practice, 5–4, ruling that rotating prayer by local ministers chosen on a neutral basis—and without government control over the content of prayers—is permitted by the Establishment Clause of the First Amendment.
The decision seems plainly right on its own terms. Still, it is hard to be thrilled. Within weeks of the decision, my newspaper carried a more-lite-than-heat story about efforts by atheists—and by the Church of the Flying Spaghetti Monster—to assert their equal rights to anti-pray and mock-pray. For those who take their faith seriously, the people of Greece may have won a Pyrrhic victory.
The Court’s cases involving the Constitution’s separation of powers produced a mixture of sound and unsound reasoning, but went against the Obama administration’s assertions of power. In National Labor Relations Board v. Noel Canning, the Court unanimously struck down President Obama’s “recess appointments” to the NLRB but split 5–4 as to approach. Justice Breyer’s majority opinion (for the liberals plus Kennedy) held that presidents can make recess appointments when the Senate is not in session for three to ten days (a mushy standard not in the Constitution) but that the Senate (usually) gets to decide when it is in recess and when it isn’t. In this instance, the recess was short and the Senate said it wasn’t in recess, so the appointments were invalid. The opinion is classic judicial balancing and make-it-up-as-you-go-along-ism, and Justice Scalia’s concurring opinion (for four) appropriately took it to task. He argued for a bright line of no recess appointments except between sessions of the Senate, and no recess appointments at all for vacancies that first arose while the Senate was still in session.
By far the most important decision limiting government power was Utility Air Regulatory Group v. Environmental Protection Agency. The specific question concerned the power of the EPA to regulate sources of “greenhouse gases” under the Clean Air Act of 1970. In 2007, the Court had construed the act broadly to say that the meaning of the word “pollutant” could include greenhouse gases (Massachusetts v. EPA). The problem this created was that the act’s triggers for the level of pollutants enabling regulation were not keyed to such gases. Congress had different types of pollutants in mind in 1970. Following the figures in the act would therefore have produced a regulatory nightmare that even the Obama administration didn’t want. What to do? Simple: The EPA’s solution was to rewrite the statute to change the quantitative triggers and make things work out better for regulating greenhouse gases.
This has become the Obama administration’s standard approach to the constitutional duty of the president to “take care that the laws be faithfully executed,” most notably in the areas of immigration and health care. If a law does not fit current policy needs, takes effect too close to an election, or would harm a political constituency, lop off the disliked parts and rewrite the rest to suit.
Justice Scalia’s majority opinion in Utility Air would have none of this. “An agency has no power to ‘tailor’ legislation to bureaucratic goals by rewriting unambiguous statutory terms,” he wrote. “Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, ‘faithfully execute[s]’ them.” The duty of faithful execution “does not include a power to revise clear statutory terms that turn out not to work in practice.”
This is an important holding and one of lasting impact. Look for Utility Air to be cited prominently in ongoing challenges to the Obama administration’s refusal to enforce the laws as written. Much of the EPA’s regulation ended up being upheld on different grounds, but Utility Air’s importance lies in its clear determination that the president’s constitutional duty to execute the laws does not give him the power to rewrite them.
A measure of the success of the past year’s term is to contemplate what things would have looked like if the Court had gotten these cases wrong. Religious persons, groups, and businesses could be coerced to support and pay for abortion drugs by administrative fiat. Men and women who wish to counsel pregnant women against abortion could be prevented from doing so on public property near clinics. Citizens could be forbidden from financially supporting as many political candidates as they chose. Politicians could sue, or threaten to sue, citizens to punish them for expressing critical views, and effectively shut down opposition. Workers could be forced by law to support political causes with which they disagree. The Court held the line against such outcomes.
There is more to the Court’s work than these high-profile cases, of course. The Court decided the usual batch of criminal-law, business-law, patent-law, and statutory-interpretation cases. These were sometimes interesting, but nothing big to write home about. What were big—what were worth writing home about—were the cases upholding, in various forms, the rights of persons and groups to disagree, to resist, to remove themselves from government compulsion, to not go along with the juggernaut of government and social trends.
It is unlikely that ten years from now many people will be talking about much of the rest of the Court’s docket. Instead, we will be remembering—and, let us hope, celebrating, reaffirming, deepening—this term’s good-to-excellent decisions concerning rights of free expression, political action, and especially religious freedom. If these decisions prove enduring, 2014 will have been a very good year indeed.
Michael Stokes Paulsen is Distinguished University Chair and Professor at the University of
St. Thomas School of Law.