First Things RSS Feed - Michael W. McConnell

An Offer We Must Refuse

Sun, 01 Oct 2023 00:00:00 -0400

In his masterwork, Thus Spake Zarathustra , Friedrich Nietzsche’s mythic hero carries a message—“God is dead!”—throughout the earth, in a parody of the Gospels, calling it his “gift” to mankind. The book begins with an encounter between Zarathustra and a holy man who lives alone in a forest. Zarathustra asks the hermit what he does, and the hermit replies: “I make hymns and sing them; and in making hymns I laugh and weep and mumble: thus do I praise God.”

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Constitutional Freedom

Wed, 01 Feb 2023 00:00:00 -0500

Religious Liberty and the American Founding:
Natural Rights and the Original Meaning of the First Amendment Religion Clauses
by vincent phillip muñoz
university of chicago,
344 pages, $30

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2013 Supreme Court Roundup

Tue, 01 Oct 2013 00:00:00 -0400

The United States Supreme Court has two personalities. In the vast majority of cases on its docket, those involving criminal law, business regulation, statutory interpretation, freedom of speech, procedure, jurisdiction, and other technical but important legal questions, the Supreme Court acts like a court of law”a good one. The justices achieve a remarkable degree of consensus and craft opinions that are clear, persuasive, and well grounded in text, history, and precedent. This is true even in hard cases, where there are good arguments on both sides. No one will agree with every decision, but no fair-minded observer could doubt that decisions are based on conscientious legal reasoning.

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Freedom By Association

Wed, 01 Aug 2012 00:00:00 -0400

In New York City, about one hundred and fifty churches and religious groups—many of them serving poor and immigrant congregations—are threatened with eviction from public buildings where other community groups are permitted to rent space because they engage in “worship” and not just religious “speech.” Every group is welcome but not churches, mosques, and synagogues.

Just thirty years ago, the Supreme Court protected the rights of groups like these to meet on public property. In 1981, in Widmar v. Vincent, an eight-to-one majority squarely rejected the notion that a public university can exclude religious groups when it allows other groups to meet, and a series of subsequent decisions extended that equal-access principle to other public settings. Indeed, even before Widmar, courts protected the right of religious groups to worship on public property—to hold vigils or sunrise services in parks, for example—on an equal basis with other groups, without questioning their right to choose their pastors, priests, or leaders.

Why has the freedom of law-abiding groups to meet on public property eroded in recent years? In an important new book, Liberty’s Refuge: The Forgotten Freedom of Assembly, legal scholar John D. Inazu puts forward a surprisingly simple and persuasive explanation: The right to meet has eroded because the Supreme Court has neglected the explicit textual source of that right, the freedom of assembly (often called freedom of association, but that term is not used in the Constitution), and has substituted for it weaker protections under principles of freedom of speech.

The legal shift, he argues, occurred in two stages. First, the distinctive elements of freedom of assembly—the rights to use public space and to organize associations around shared beliefs—were subsumed under freedom of speech. Second, because freedom of speech doctrine is focused on the message and not on where it is spoken or who says it, government can discriminate between groups so long as its distinctions pass a toothless “reasonableness” test and do not overtly target a group on the basis of its message.

Ironically, in their otherwise sparse deliberations over the freedoms of speech, press, assembly, and petition, the drafters of the First Amendment made one thing clear: These freedoms are separate and warrant individual enumeration and protection. In the past thirty years, without offering any reason and without considering this history, the Supreme Court has committed the one error the drafters most clearly tried to prevent.

On August 15, 1789, the House of Representatives began its deliberations over a proposal—at that time, the Fourth Amendment—that “the freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.” Immediately, Theodore Sedgwick of Massachusetts moved that the Assembly Clause be struck out. He argued that, once the Constitution had secured the freedom of speech, a separate provision for freedom of assembly would be redundant. “If people freely converse together,” he said, “they must assemble for that purpose.” It is a “self-evident, unalienable right” that “would never be called in question.” There was no need to include it in the list of constitutionally protected rights.

John Page of Virginia responded that people have “been prevented from assembling together on their lawful occasions,” referring obliquely to William Penn’s infamous prosecution in 1670 on the charge of unlawful assembly after he preached a Quaker sermon to a crowd assembled on Gracechurch Street in London: “Therefore, it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.” An explicit Assembly Clause would ensure that the people would not be “deprived of the power of assembling under any pretext whatsoever.”

Page’s reference to Penn was doubly suggestive. Penn’s sermon occurred on a public street, without official permission. And its subject matter was religious rather than political and therefore beyond the proposed protection for assemblies gathered to discuss the common good. Page also seemed to realize that governments even in the new American republic might be prone to restrict the freedom on various pretexts—which is why a separate enumeration would be valuable.

With Page’s reminder of the Penn prosecution in mind, Congress rejected Sedgwick’s motion by a large majority and later omitted the words “and consult for the common good,” thereby extending the right of assembly to those assembling for nonpolitical matters such as religion and, presumably, for social, cultural, and other purposes. The sole limitation was that the assemblies be peaceable. The right of the people peaceably to assemble in public spaces escaped being merged into a more general freedom of speech.

What difference did this make? Because there were few “assembly” cases—and indeed no “freedom of speech” cases in the Supreme Court either—for over one hundred years after adoption of the First Amendment, we have no authoritative adjudication of the differences between these two related freedoms. Inazu’s discussion of the history and text of the Clause strongly suggests two ways in which the right of assembly supplements the freedom of speech, arguing that the freedom of assembly has to include the right to use public spaces and the right of associations to plan their assemblies.

First, freedom of assembly by its nature involves public spaces, like the public street in which the founder of Pennsylvania preached. If crowds of people are to assemble, they must assemble somewhere. In early America that somewhere was ordinarily the village green, the commons, the streets, the wharves, or the parks, not just private spaces like taverns, coffeehouses, churches, and courthouses. A right of assembly without a right of access to public spaces would be an empty right.

Today, the courts treat the right to speak in public places as a branch of free-speech law called the “public forum doctrine.” The government may regulate speech on government property that has traditionally been available for public expression only when necessary to serve a compelling public purpose. But this is not a natural proposition. Although, as the Supreme Court recently explained in the 2011 decision Brown v. Entertainment Merchants Association, the “most basic” principle of freedom of speech is that, with certain very limited exceptions, “government lacks the power to restrict expression because of its message, ideas, subject matter, or content,” this principle logically carries no entitlement to use government resources. The government may prevent speakers from occupying public parks, streets, or commons to protect alternative uses of the land. Freedom of speech is ordinarily a negative freedom, not a positive claim on public property.

As Inazu points out, however, the Court’s earliest public-forum cases involved claims of freedom of assembly in addition to freedom of speech. In a 1939 decision, Hague v. CIO, the Court declared that public streets and parks have been used “immemorially” and “time out of mind” for “purposes of assembly, communicating thoughts between citizens, and discussing public questions.” The Court cited no authority for this assertion. In fact, the Court was wrong.

In Britain, the people were not free to assemble in the streets and parks without official permission. Unauthorized groups of twelve or more could be charged and prosecuted, like Penn, for unlawful assembly. Colonial governors tried to suppress the Sons of Liberty on similar legal bases. America’s declaration of a freedom of assembly was a break from this history, not a continuation of rights that had existed “time out of mind.” Nothing in the history of freedom of speech suggests any change in rights of access to public property. The creation of the freedom of assembly embodied this legal change in the right of access.

Second, freedom of assembly was understood to protect not only the assembly itself but also the right to organize assemblies through more or less continual associations and for those associations to select their own members by their own criteria. The Sons of Liberty’s public meetings were not purely spontaneous gatherings; they were planned, plotted, and led by men who shared a certain vision and met over a period of time, often secretly, to organize them. In this respect, the freedom of assembly is preparatory to the freedom of speech. The freedom of speech presumably suffices to protect what is said at an assembly. Freedom of assembly or association is necessary to protect the seedbed of free speech: the group that plans and guides the speech.

This aspect of freedom of assembly was tested in the first decade of the republic. Political opponents of the Washington administration formed dozens of “Democratic-Republican societies” in every region of the nation. Typically they held public meetings every month and more frequently near elections or at times of political controversy, and in between the public meetings met among themselves to discuss ideas, principles, and strategies. Especially in the wake of the Whiskey Rebellion, President Washington and his Federalist allies came to view the Democratic-Republican societies as instigators of sedition, incipient American versions of the Jacobin clubs of revolutionary France. Washington called for legislative action against them.

The particular charge was that the societies were “self-created,” meaning that they were deliberately organized and limited to like-minded members rather than spontaneous and fully public. One Federalist critic contrasted the societies to a “regular town meeting,” warning of their “nocturnal meetings, of individuals, after they have dined, where they shut their doors, pass votes in secret, and admit no members into their societies, but those of their own choosing.”

In defense of their activities, the clubs vocally asserted “the right of citizens to assemble.” Washington responded that “no one denies the right of the people to meet occasionally, to petition for, or to remonstrate against, any Act of the legislature” but that it was “pernicious to the peace of Society” for a “self-created permanent body” to organize and sustain political dissent. In a letter to James Monroe, James Madison described this speech as “perhaps the greatest error” of Washington’s political career. Although the Federalist-dominated Senate censured the Democratic-Republican societies as Washington proposed, the House conducted a serious debate over whether the clubs had “a constitutional right to exist.” Under Madison’s leadership, the House eventually drafted a reply to Washington that omitted any censure of the groups.

This was regarded as a great victory for freedom of assembly, and as setting a precedent that groups of citizens have the right not just to “meet occasionally” but to form groups of like-minded persons to pursue common political, religious, cultural, or social objectives. By the 1830s, French observer Alexis de Tocqueville regarded this freedom of association as the most distinctive feature of American public life. Inazu aptly calls it “liberty’s refuge,” because the freedom of assembly allows downtrodden groups in American life the space to meet, share ideas, and prepare a more public message if that is what they wish to do.

Inazu also stresses the nonpublic and nonexpressive functions of Tocquevillian groups. With their public meetings no longer confined to consultations over the common good, constitutionally protected associations in America could provide opportunities for individuals to gather together, talk among themselves, generate ideas or offer mutual support, worship, play, or enjoy each other’s company, whether or not they had a particular message to impart to the public at large. Much of this important human interaction, essential to a healthy society, is lost when the courts reduce the freedom of groups to a freedom of speech and protect groups only from regulations that would impair their public messages.

After setting forth the legal and historical foundations of freedom of assembly, Inazu provides a lively history of assemblies, conventions, and associations in the nineteenth and twentieth centuries. He pays perhaps insufficient attention to the legal obstacles faced by the abolitionist movement before the Civil War but describes in detail the meetings, marches, and parades of freedmen and women’s-rights advocates in the aftermath of the war.

He rightly stresses the symbolism of freed blacks marching and meeting in public space as if they were full and equal citizens, entitled to be there. Which they were. He similarly describes public meetings where women occupied the main floor and the stage, with their male supporters relegated to the galleries: a silent but eloquent demonstration of the capacity of women, no less than men, to lead and to govern. Inazu’s unstated but provocative point is that the very racial and sexual homogeneity of these groups was part of their message. Liberal integrationism would have blunted, if not destroyed, their witness.

Inazu’s story of the mid-twentieth century is dominated by three movements, each plagued by governmental opposition and each loudly invoking in self-defense the freedoms of assembly and association. The NAACP generally prevailed in the Supreme Court, giving birth to a formal recognition of the freedom of association as a fundamental constitutional right. The Ku Klux Klan and the Communist party generally lost. Unfortunately, there was no common thread to the Court’s reasoning in these cases. NAACP protests were protected even when they were not entirely peaceable (see the 1982 decision NAACP v. Claiborne Hardware Co. ), and Communists were often unprotected even when they were (see the 1951 decision Dennis v. United States ). The cases thus produced a jurisprudence of uncertainty rather than a refuge for liberty.

In the modern period, the distinctive elements of freedom of assembly—the right to speak in public places and the freedom of association—came together in cases involving student groups on public campuses. Here Inazu’s legal history is a bit thin. In a 1972 decision he does not even mention, Healy v. James, the Supreme Court overturned the efforts of a public university to exclude a local chapter of Students for a Democratic Society (SDS) from participation in its program of recognized student groups, and did so expressly on grounds of freedom of association rather than just freedom of speech.

This was significant for two reasons. First, the Court analogized public-university meeting space to the traditional public forums of streets, parks, and commons, rejecting the university’s claim that “recognition” imparted government approval, which the government was entitled to withhold from groups of which it disapproved. Second, it did so in the context of a student group that refused to forswear the use of violence. Evidently, the “peaceableness” limitation of the Assembly Clause would not be triggered without an outbreak of outright violence.

After the SDS decision, the Supreme Court handed down a series of rulings expanding the scope of the right of student groups to meet on the property of public schools: to religious groups on college campuses, to religious and other groups on elementary and high school campuses, and to religious groups wishing to share in the benefits of student-activity funds. Most of the lower-court cases involved two types of student group: homosexual (or homosexual rights) groups and Christian groups. Interestingly, the decisions in favor of Christian groups were cited to support the rights of homosexual groups, and the decisions in favor of homosexual groups were cited to support the rights of Christian groups. That is the way First Amendments rights should be: Rights transcend the identities and perspectives of the people involved.

The final chapters of Liberty’s Refuge recount the demise of the freedoms of assembly and association in the Supreme Court’s jurisprudence over the past thirty years, as public-accommodation laws originally directed only at certain businesses like railroads, inns, or theaters were applied to voluntary private groups. Increasingly, the Court forgets or neglects the independent textual roots of the freedom to assemble and depicts the freedom of association as merely “implicit” in the freedom of speech. And the Court is increasingly leery of groups that do not share the egalitarian ideology of the civil-rights revolution.

In Roberts v. United States Jaycees in 1984, the Court allowed a state to require the young men’s social and service organization to admit women as members, on the theory that this would have no effect on the group’s public advocacy. It might be true that the group’s public advocacy would be unaffected, Inazu argues (though even that is doubtful), but what about all the other attributes of voluntary group association, such as friendship, service, leadership, or development of role models? By focusing only on public advocacy—the “expressive” nature of the association—the Court essentially eliminated all constitutional protection for the group itself.

The Boy Scouts narrowly escaped a similar fate, with even more troubling constitutional implications. The organization understood its own teaching as being inconsistent with open homosexuality and accordingly declined to allow an openly gay young man to serve as assistant scoutmaster. In Boy Scouts of America v. Dale, decided in 2000, the five-justice majority concluded that the freedom of association protects the right of private noncommercial expressive groups to choose leaders whom the group thinks will exemplify their moral views. (I wrote the brief for the Boy Scouts.)

There were, however, four dissenters, Justices Stevens, Souter, Ginsberg, and Breyer. They did not precisely disagree with the majority’s legal framework, but they declared it “as plain as the light of day” that homosexuality did not offend the Boy Scouts’ creed. That is an assertion that should give any civil libertarian pause. Where do justices get the authority to say that a private group’s moral teaching is really the opposite of what it thinks? Yet much of the legal academy sided with the dissenters, and many cities across the nation responded by denying Boy Scout groups access to public facilities, such as marinas, parks, or campgrounds.

Thus did the right of groups to be “self-created”—the right to organize associations of like-minded citizens for mutual support as well as public witness—lose its legal force. If freedom of association is merely “implicit” in freedom of speech, groups lose control over their identity—their membership and leadership—if they cannot prove to a court’s satisfaction that their public message would be changed by the admission of outsiders. This removes all constitutional protection for the nonexpressive aspects of a group’s activities and invites courts to second-guess the meaning of their beliefs.

Inazu does not discuss the parallel reduction in protection for the right of assemblies to meet in public spaces. As already noted, in the SDS case and others, the Court initially extended the idea of “public forum” beyond the traditional open spaces of parks, streets, and sidewalks to public property that has been opened for use by the public for speech—places such as empty classrooms on a college campus, high school auditoriums over the weekend, airports, municipal buses, city-owned theaters, and even “metaphorical” forums such as the Combined Federal Campaign, student-activity funds, community-access television channels, and the like. The government may no more discriminate among speakers on public property that has been opened for free-speech purposes than it could in the parks and streets.

But this relatively simple idea was complicated by the fact that sometimes the government opens property not to the general public for speech on any subject but to specific uses. A public university might open classrooms for use by university student groups but not to community groups. A city council might institute an open-mic period for public comments on matters pertaining to city business without allowing blowhards to hold forth on irrelevant subjects. A public school might limit its poetry magazine to poetry or a science magazine to science. The courts properly approved these limits so long as the limits reasonably served the purpose for which the forum was created and did not discriminate among speakers on the basis of viewpoint.

In recent years, however, some courts have interpreted this doctrine as allowing the government to limit any nontraditional forum—meaning any property other than streets, sidewalks, and parks—in any way, so long as the limits are reasonable and not overtly discriminatory against particular viewpoints.

For example, two circuit courts, the Second (in New York) and the Ninth (in California), have upheld policies opening government property to all community uses except religious “worship,” not on the ground that such use would violate the separation between church and state, a theory that was rejected thirty years ago, but on the ground that “worship” is a category of speech and not a viewpoint, which therefore may be excluded from a “limited public forum.” On this reasoning, the city of New York has decided to evict more than a hundred churches from public spaces they are now renting. The courts have rejected the churches’ free-speech claims, though their claim to the free exercise of their religion—their claim that government may not single out religious practices for unfavorable treatment—remains undecided.

Inazu calls particular attention to a recent decision, Christian Legal Society v. Martinez. (I represented the losing party, the Christian Legal Society, in the Supreme Court.) The Hastings College of the Law, a public-university law school in San Francisco, denied a small Christian student group its right to meet on campus after the school learned that the group believed that sexual relations are immoral outside of traditional marriage. The school’s excuse was a newly minted “all-comers” policy, which purportedly requires all student groups to allow anyone to vote and seek leadership positions, even if they do not share or indeed reject the group’s beliefs and purposes. The Christian Legal Society happens to be the only group this rule has ever been enforced against. Two years ago, by a five-to-four vote, the Supreme Court upheld Hastings’ policy against the Society’s First Amendment challenge.

Both of the recent changes in the law of freedom of assembly played a part in the Court’s affirming the school’s effective discrimination against the religious group. The Court first decided to “merge” the group’s association claim into its speech claim—stating that it “makes little sense to treat [CLS’s speech and association] claims as discrete” and that “the same ground rules must govern both speech and association challenges” in the context of exclusion from public property. In other words, there is no separate protection for assembly or association, beyond the protection for speech.

Then it rejected CLS’s free-speech claim on the ground that the “all-comers” rule was not overtly directed at any particular viewpoint. Addressing CLS’s argument that the rule in practice discriminated against small and unpopular groups, the Court responded that the policy is directed at CLS’s “conduct” and not its beliefs—its “conduct” being the exercise of its freedom-of-association right to set its own criteria for leaders and voting members.

Theodore Sedgwick would be horrified. He thought that freedom of speech was broad enough to protect the right of groups to organize and meet. It turns out, though, that according to the Supreme Court, freedom of speech protects only the message itself and not the process of organizing the message through the association of like-minded individuals. John Page and the First Congress were prescient in seeing that separate protection for assembly (as well as religion, press, and petition) would be necessary to prevent the government from using various “pretexts” to suppress assemblies that are contrary to the views of those in power. In Washington’s day, the unpopular meetings were of the Democratic-Republican clubs. In Alabama in 1958, they were of the NAACP. In San Francisco and New York today, the unpopular meetings are of religious citizens.

The title Liberty’s Refuge: The Forgotten Freedom of Assembly is therefore sad but all too true: Freedom of assembly has been forgotten. And unfortunately Inazu is right about another thing as well: It matters. America has long been distinguished by a vibrant and independent civil society, one possible only when voluntary associations can meet freely in public spaces and public institutions and when they can limit their membership and leadership to persons who share their beliefs. This means that groups will exist that we like and groups will exist that we do not like.

Under the Court’s current weak doctrine, governments can effectively pick and choose which groups are permitted to use public property, using pretexts like the “all-comers” rule or the policy against “worship.” The framers of the First Amendment thought they had guaranteed all associations the right to meet, with the sole limitation that they behave peaceably. That freedom has slipped away.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School.

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A Free Speech Year at the Court

Sat, 01 Oct 2011 00:00:00 -0400

The Supreme Court completed its 2010 term at the end of June with no blockbusters, few surprises, and an unbroken string of victories for free-speech plaintiffs. It was a year to take a deep breath before the onslaught of divisive cases next year: Same-sex marriage, the constitutional right of religious groups to choose their clergy without government interference, and enforcement of laws against illegal immigration are likely to be among them. We do not yet know whether the Court will tackle the health-care issue next year as well, but the fact that the two courts of appeals that have addressed the issue have come down on opposite sides makes it highly probable.

Despite the usual press rumblings about a “divided court,” almost half the cases—48 percent—were decided by a unanimous vote, and another 28 percent were decided with only one or two dissents. During his confirmation hearings, John Roberts declared his hope that the Court under his leadership would decide cases more narrowly, with greater consensus. This seems to be happening. For the last three years, the frequency of unanimous decisions has been steadily increasing.

After eleven years with no change on the bench, a new justice has joined the Court four of the last six years, with two Bush appointees and two Obama appointees. Interestingly, these two twosomes have been the most reliable voting pairs on the Court. John Roberts and Sam Alito voted together in 96 percent of the cases. Sonia Sotomayor and Elena Kagan voted together in 94 percent. Justice Anthony Kennedy remains the deciding vote in most close cases. He was in the majority 94 percent of the time. (No wonder advocates before the Court try to pitch their cases to him.) In 5–4 cases, he voted with the conservatives two-thirds of the time and the liberals one-third. The overall result is a moderate, but center-right, court.

For the first time in history, three women sit on the Court, one of whom is the first-ever Hispanic justice. Yet in some important ways the Court is less diverse than ever before. Every one of the justices attended either Harvard or Yale Law School. Those are narrow and elite environments with distinct perspectives and are scarcely representative of the legal profession, let alone the nation. Surely presidents could find good justices who went to school elsewhere. Only one justice, Kennedy, grew up and practiced law in the West. One, Thomas, is from the South, and one, Roberts, from the Midwest. Four grew up in New York City. The good news is that every borough except Staten Island is represented. Four justices are former tenured law professors, which must be a record. Only two ever tried a criminal case. None has business experience, and none has ever run for elective office.

For the first time in decades, the ideological makeup of the Court perfectly aligns with its partisan makeup. The four liberals were named by Democratic presidents, and the five conservatives (counting Kennedy) were named by Republicans. Justice Stevens’ retirement ended the long string of liberal lions named by Republican presidents: Earl Warren, William Brennan, Harry Blackmun, David Souter, and Stevens himself. Democratic appointments have never turned out to be conservative. If Republican presidents had been as ideologically consistent as Democratic presidents in their appointments, American legal history would look very different.

The case with the greatest practical effect this term was Brown v. Plata , a 5–4 decision affirming a lower-court order requiring the state of California to release some 46,000 prisoners because of persistent defects in the prison health-care system. In dissent, Justice Scalia called this “perhaps the most radical injunction issued by a court in our nation’s history.” Hyperbolic, perhaps, but the decision does read like a throwback to the era when federal judges assumed control over schools, prisons, asylums, hospitals, and other institutions in the name of broad constitutional claims.

Congress erected high barriers to injunctions of this sort when it enacted the Prison Litigation Reform Act of 1995, and Justice Alito’s dissent makes a strong case that the substance of the statute was largely ignored in this case. But it is not clear that the state—represented by then Attorney General, now Governor Jerry Brown—was unhappy with the result. California’s three-strikes initiative has led to an uncommonly high incarceration rate, and cash-strapped state budgeteers might welcome the prospect of being relieved of the cost of caring for 46,000 prisoners. The serious legal question is whether this decision augurs a return to activist institutional-reform litigation in other states and contexts.

There has been a drumbeat that the Roberts Court is lopsidedly pro-business. The New York Times headlined an article on the subject “Justices Offer Receptive Ear to Business Interests.” A popular satirical photograph showed the nine justices wearing clothing with corporate logos. More seriously, the Senate Judiciary Committee conducted a hearing last June with the amusingly tendentious title “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.”

Well, what are the facts? This year the Supreme Court heard eighteen cases in which private plaintiffs sued business parties for damages. The business defendants won nine of these and lost nine of these. There were nine cases in which government and business were on opposite sides. Business won five and government won four. The Court decided against business, and in favor of workers, in every single labor or discrimination case decided on the merits. In many of these business losses, the Court reversed lower-court decisions that went in favor of the business, and in many of these cases the Court was unanimous.

Of these cases, Wal-Mart Stores v. Dukes inspired the most commentary, and the most distortion. This was the largest class-action discrimination case in history. Three named plaintiffs attempted to represent the claims of every woman who had worked at Wal-Mart since the end of 1998. The question was whether this case could proceed as a class action, or whether employees who alleged discrimination had to prove their case individually. The Court unanimously held that class-action certification had been improperly granted because claims for money damages are “individualized” claims and therefore cannot be amalgamated in a mandatory class action.

It is important to note that the Court’s reasoning in this case protects the right of individual plaintiffs with strong claims, who otherwise would have been submerged in a legal action under the control of lawyers who are effectively independent of any clients. Class-action lawsuits notoriously allow plaintiffs’ lawyers to sacrifice the interests of the class in favor of judgments favorable to the lawyers.

In addition, by a 5–4 vote, the justices concluded that there were no questions of law or fact common to all members of the class. The plaintiffs’ theory of the case was that Wal-Mart had delegated hiring authority to individual store managers and that this led to unfavorable treatment of female applicants. The problem with this theory is that the decision to leave decisions to a lower level means precisely that no common employment policy is enforced at the corporate level, and thus, by definition, there can be no common questions. As the majority put it, decentralization “is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business.”

In other cases the Court held that the California Supreme Court’s rule that arbitration clauses are contrary to public policy if they forbid class actions is preempted by the Federal Arbitration Act, that states cannot bypass the need for enactment of environmental laws by bringing climate-change cases under the common law of nuisance, and that manufacturers of generic drugs, who are required by law to use exactly the same labeling as the branded manufacturer, cannot be sued for alleged defects in the label.

These decisions, and others, have been criticized for their supposed pro-business tilt. But for every case that went in favor of business, another case went the other way. In Matrixx Initiatives, Inc. v. Siracusano , a unanimous Court reversed a lower-court ruling that a drug company’s failure to make public reports of adverse drug reactions cannot be the basis for a lawsuit for securities fraud unless the number of adverse reports was statistically significant. That decision greatly increases the uncertainties of when to disclose such reactions and the companies’ exposure to liability if they guess wrongly. In Williamson v. Mazda Motor , the court held that an automobile manufacturer could be sued for failure to install lap and shoulder belts, even though federal safety standards did not require it. In FCC v. AT&T the Court held that a corporation could not invoke the exception in the Freedom of Information Act that exempts from disclosure materials that would “constitute an unwarranted invasion of personal privacy.” And in Erica P. John Fund, Inc. v. Halliburton Co. , the Court held that plaintiffs can file securities class-action lawsuits without proving loss causation.

Overall, it is hard to escape the conclusion that the Court was simply deciding cases in accordance with its best reading of the law. Indeed, at the Judiciary Committee hearing on “Barriers to Justice and Accountability,” the senators must have been surprised by the testimony of the star witness: the general counsel of the Commerce Department under the Clinton administration, Andrew Pincus. Pincus told the committee: “Some observers contend that several of the Court’s decisions this Term effected a dramatic change from prior precedent and have significantly changed the law so as to favor business defendants.” Despite his partisan affiliation, Pincus saw no signs of a pro-business tilt: “In fact, it was the positions of the plaintiffs in these cases that departed very substantially from existing law. It is not at all surprising that the Court refused to embark on the radical courses urged by the plaintiffs in these cases.” The business cases, it turns out, were pretty much business as usual.

In any event, concerns about a supposed tilt in favor of business interests often relies on the implicit premise that when businesses win, real people—employees, consumers, investors—lose. Every case is different, but workers are not infrequently harmed when their employers are saddled with higher costs or unable to fire underperforming coworkers, consumers when they have to pay more for products, and investors when they have to pay damages for supposed fraud. Nationally uniform environmental and product-safety regulation by expert agencies typically is more sensible and cost-effective than haphazard interventions by uninformed juries. Businesses can do bad things and should compensate the victims of their wrongdoing, but they also employ workers, produce essential products, and generate profits that support pensions, college savings, and family budgets. In the frequent conflicts between tort lawyers and business defendants, there is no reason to assume that the former necessarily represent the public interest.

In the cases involving criminal law and law enforcement, the Court kept to a moderate path. It emphasized that federal courts must defer to earlier state court decisions when state prisoners petition for habeas corpus, that law enforcement decisions must be decided on the basis of objective indicators of probable cause or reasonable suspicion rather than the motivations of police, and that the exclusionary rule for improperly seized evidence is designed solely to deter police misconduct. Many of the pro-defendant criminal cases featured an alliance between Justices Scalia and Thomas, who insist on strict adherence to constitutional text, and the more pro-defendant liberal justices, against a pragmatic middle of Justices Roberts, Alito, Kennedy, and Breyer. It is not yet clear where Justices Sotomayor and Kagan will stand in these cases.

The dominant theme of the 2010 term was the Court’s vigorous enforcement of First Amendment rights. Free-speech claimants won virtually every case, even the close and difficult ones. The justices’ commitment to free speech, even in tough cases, usually cuts across the left–right divisions on the Court and must be seen as this Court’s most distinctive contribution to the ongoing judicial interpretation of our constitutional order.

The most gut-wrenching was Snyder v. Phelps . Members of a Kansas “church” make it a practice to travel to the funerals of fallen American servicemen and picket the services with hateful signs such as “God Hates Fags” and “God Hates the USA / Thank God for 9/11,” motivated by the apparent belief that American tolerance toward homosexuality, especially in the military, is the divine cause of both the 9/11 attacks and our military misfortunes. Albert Snyder, whose son died in Iraq in the service of our country, was the victim of one of these grotesque demonstrations and sued, understandably enough, for intentional infliction of emotional distress. The jury awarded him $10.9 million in damages, which the district court reduced to $5 million. The Supreme Court reversed, by an 8–1 vote, holding that the First Amendment protects the demonstration.

In an opinion by Chief Justice Roberts, the Court held that when speech addresses a matter of public concern (here, the supposed pro-homosexual policy of the United States and its military) and satisfies all content-neutral time, place, and manner requirements (the demonstrators kept to public property, approximately one thousand feet from the church), it cannot be subjected to damages on the basis of a jury determination that the speech is “outrageous.” “Outrageousness,” the Court explained, “is a highly malleable standard with ‘an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.’”

Legal experts and media editorialists almost uniformly proclaimed the Snyder decision a great victory for the American constitutional commitment to robust debate, and so it was. The case should remind Americans just how exceptional that commitment is. In most Western democracies, speech of the sort at issue in the Snyder case would be subject not just to civil damages but to official prosecution. In Canada, a youth pastor was prosecuted and fined for writing a letter to the editor criticizing homosexuality; in Holland a parliamentarian was prosecuted (though ultimately acquitted) for criticizing Islam; in Sweden a minister was sentenced to a month in prison for preaching against homosexual conduct (though the sentence was ultimately reversed on appeal). In all of these cases the language used was much less extreme. Hateful though the demonstrators’ speech was in Snyder , we should be grateful that our courts are standing up against the international trend toward punishing speech on the ground that it is offensive to protected minority groups. This is part of what makes America unique.

But let us not be smug and complacent in our self-congratulation. If “offensive” or “outrageous” language of this sort had been uttered on an American college campus or to coworkers during the course of employment, the result might have been quite different. Harassment law, when applied to speech, operates on a premise opposite to the one that prevailed in the Snyder decision. In some locations (campuses and workplaces, but apparently not funerals) our law presumes that people are entitled not to be confronted with speech that offends on the basis of race, sex, sexual orientation, religion, or the like.

One federal court put it this way: “While [harassment law] does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their coworkers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well.” The Office for Civil Rights of the Department of Education has embarked on a campaign to force American universities to be more aggressive in combating “sexist” speech on campus; even Yale University recently got a warning. It will be interesting to see what happens when the constitutional law of the First Amendment, articulated in Snyder v. Phelps , is applied to harassment law.

The hardest and ultimately the most interesting and troubling of the Court’s speech cases was Brown v. Entertainment Merchants Assn ., which invalidated a California law prohibiting the sale of extremely violent video games to minors. The case produced an unusual lineup. Justice Scalia wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. The opinion was a sweeping and uncompromising rejection of any effort by states to regulate non-obscene messages to children, even in technologically novel forms, in the absence of scientifically valid proof of harm and efficacy. It was an opinion that could have been written by a Brennan, a Douglas, or a Black in the heyday of the Warren Court.

The majority held that regulating a category of speech, based on its content and solely when the speech is “directed at children,” is “unprecedented and mistaken.” What about the law prohibiting children from purchasing what the Court called “girlie magazines,” upheld in Ginsberg v. New York ? Well, sex is different from violence, the majority stipulated, and it now appears that sexual content is the only legitimate basis for restrictions on minors under the First Amendment. Is that what the framers of the First Amendment understood? The majority does not think to ask.

“No doubt a state possesses legitimate power to protect children from harm,” the Court went on, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.” With this reasoning the court now interprets our constitutional principles in such a way that it can be illegal to sell a Playboy magazine to a seventeen-year-old boy or a beer to a twenty-year-old veteran, but a state cannot make it illegal to sell to children of any age videos in which the gamer repeatedly commits incredible acts of sadistic violence. Is it really true that the sight of a breast or buttock is more dangerous to teenagers than playing games in which “victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces,” where victims “cry out in agony and beg for mercy,” where “blood gushes, splatters, and pools” and “severed body parts and gobs of human remains are graphically shown”? Maybe that is what the First Amendment means, but it seems counterintuitive.

Justices Alito and Roberts concurred in the judgment that the California statute is unconstitutional, but solely on vagueness grounds. (It is difficult if not impossible to tell what video games are banned under the poorly worded statute.) This is an important difference, because striking down the statute on vagueness grounds allows other states in the future to try again. As Justice Alito put it: “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.” Vagueness is a time-honored device for invalidating statutes on free-speech grounds without foreclosing the possibility of better-drafted forms of regulation in the future.

In my opinion, Brown v. Entertainment Merchants presented a proper occasion for the more restrained approach favored by Alito and Roberts. We have no consistent or coherent principle for determining when constitutional rights apply to minors and when they do not, and courts should be cautious about going too far.

Moreover, video games are not, in fact, the same phenomena as books, movies, or comic books. The gamer is not just “exposed” to “ideas,” he engages in conduct that simulates murder, rape, brutality, and torture. If virtue ethics has any experiential validity at all, repeated conduct over a period of time has an effect on human character. The studies introduced into evidence by California’s lawyers may have been “junk science,” but the underlying intuition that extremely violent gaming may harden and brutalize the souls of impressionable young people, habituating them to violence, is not so easy to dismiss. The majority effectively closes off any prospect of regulation. Alito and Roberts leave the door open. That strikes me as more consistent with judicial restraint.

Justices Thomas and Breyer dissented in Entertainment Merchants , but it is hard to imagine more opposite grounds for doing so. Justice Thomas argued that the original public understanding of the freedom of speech did not include the right to speak to minors without going through their parents or guardians. The California law does not make it illegal for minors to own or to engage in violent video games but only prohibits merchants from selling those games directly to them instead of to their parents. Justice Breyer argued that the social-science evidence is sufficient to support California’s effort to regulate, noting that the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, and other public-health organizations have concluded that violent video games lead to increased levels of violent aggression in children. The Thomas and Breyer opinions represent two opposite poles of constitutional legitimacy: historical meaning and scientific proof. In this case, the two came to the same conclusion.

Other speech cases attracted less public attention, but all were resolved in the same way: The free-speech interests prevailed. Vermont cannot prohibit pharmacists from selling—or “publishing,” if you prefer First Amendment language—information about what drugs particular doctors prescribe to pharmaceutical salesmen. This may be purely commercial activity, but the Court deems it speech and gives it constitutional protection. Justices Breyer, Ginsburg, and Kagan dissented. Arizona cannot give extra money to candidates for office when their opponents have raised additional funds. Political speech is at the apex of First Amendment protection, and the government cannot attempt to “level the playing field.” All the liberal justices dissented.

On top of cases from the preceding terms, such as Citizens United v. FEC (corporations and labor unions have the same right as any other group to express their opinions about politicians running for office) and Stevens v. United States (a federal law banning videos depicting violence against animals was ruled unconstitutional), this term’s cases make it clear that the Roberts Court has emerged as the most consistently and strongly free-speech-protective Court in American history. Don’t expect the New York Times to run any editorials on that theme, but it is true.

Other parts of the First Amendment, and especially religion, remain contentious. The only religion case of the 2010 term was Arizona Christian School Tuition Org. v. Winn . This case involved an Arizona law allowing taxpayers to claim a dollar-for-dollar tax credit for contributions of up to five hundred dollars to private organizations that give scholarships to children who attend nonpublic elementary and secondary schools, including religious schools. As a form of indirect aid for education that is neutral between religious and secular schools, the Arizona tax-credit scheme is certainly constitutional under the Court’s recent precedents, though an unrepresentative panel of the Ninth Circuit held otherwise. Instead of just reversing on the merits, however, a five-justice majority held that taxpayers who objected to the tax-credit program as a form of public support for religion and thus a violation of the constitutional prohibition against the establishment of religion did not have standing to bring the lawsuit challenging the program.

This was the fourth case in the last few years in which the Supreme Court has taken a narrower view of standing in Establishment Clause cases than it had in the past. Since 1968, in a case called Flast v. Cohen , the Court has allowed taxpayers to bring suit under the Establishment Clause even when they were not themselves injured by the challenged action, except to be offended by it. Under no other constitutional provision could plaintiffs sue on such a basis. The Court now appears to be bringing the standing rules for Establishment Clause cases more into line with the rest of the Constitution. In most instances, including Arizona Christian School , this does not produce different results. But it does have the salutary effect of reducing the courts’ involvement in these contentious and often largely symbolic cases.

It is noteworthy that this case drew the new justice Elena Kagan’s most impassioned dissent, despite the fact that her own deputy solicitor general in the Obama Justice Department advocated the position adopted by the majority. In her writings and confirmation testimony, Kagan seemed to espouse a less rigidly separationist approach to religion than that of her predecessor, Justice Stevens, but her Arizona Christian School dissent suggests otherwise, though she might well have wished to distinguish between standing, which has to do with the extent of judicial power, and the merits of the case.

My candidate for the best dissent of the term comes from yet another First Amendment case, Borough of Duryea v. Guarnieri . The case turned on the right of petition, which concerns our capacity to sue, lobby, or otherwise seek to influence government. At issue in the case was whether restrictions on the right of petition entail a different legal standard of review from those restrictions that limit freedom of speech. In cases involving government employment, freedom of speech has been limited largely to “matters of public concern,” but it is clear that, historically, the right to petition for the redress of grievances has included purely personal or private concerns. The eight-justice majority held that the Petition Clause is no broader than the Speech Clause.

In a brilliant, lively, and insightful concurrence, Justice Scalia took issue with that approach. (It was a concurrence because he concluded that, even under proper Petition Clause analysis, the plaintiff lost.) The framers of the First Amendment deliberately set forth a series of distinct rights—speech, press, assembly, petition, and religion—precisely because they raise different problems and are subject to different threats. As Scalia cogently points out, the core of freedom of speech is political speech, but that is not the core of the right of petition. “It is the Constitution that establishes constitutional rights,” he writes, “not the Justices’ notions of what is important, or the top numbers on their Petition Hit Parade. And there is no basis for believing that the Petition Clause gives special protection to public petitions.”

In recent terms, the Court has shown a distressing tendency to reduce all First Amendment rights to freedom of speech. Last term’s Christian Legal Society v. Martinez did this for freedom of association, and Duryea does it for freedom of petition. Twenty years ago, in the peyote decision, the free exercise of religion lost most of its special protection. Last year’s Citizens United decision would have been better reasoned if the Court had recognized that the case involved freedom of the press, which no one doubts applies to corporations, rather than speech. Each aspect of the First Amendment protects a different dimension of communication: Assembly or association protects the communal dimension involved in the formation of opinions; freedom of the press protects the ability to publish opinions to the public at large; petition involves communication with government itself; free exercise entails the right to practice as well as proclaim one’s faith. To reduce all these to “speech” is to lose sight of these nuances.

And so the Supreme Court completed its 2010 term. It was not an unimportant term; it never is. But it was a calm before the storm. Brace yourself. Next year we could see some fireworks.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School. He was a Circuit Judge on the Court of Appeals for the Tenth Circuit.

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The Book of Judges

Sat, 10 Oct 2009 00:00:00 -0400

Law and Judicial Duty
by Philip Hamburger
Harvard, 686 pages, $49.95

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The Supreme Court 2000: A Symposium

Sun, 01 Oct 2000 00:00:00 -0400

After several sleepy and unimportant terms, the Supreme Court this year reminded us of its importance”excessive importance, some will say. It handed down a series of blockbuster decisions affecting American life in profound ways. With a few important (and expected) exceptions”notably the partial“birth abortion case and a silly but destructive football prayer decision”the term was cause for celebration. Federalism was strengthened by invalidation of the Violence Against Women Act, freedom of religion and choice in education were advanced by Mitchell v. Helms , freedom of association was protected in the Boy Scouts decision, parental rights won their most important victory in decades, and the limits on lawmaking by administrative agency were reaffirmed in the tobacco case. All in all, the Supreme Court term strengthened the independence and vitality of civil society and fostered the decentralization of government power.

But the term was also a little scary. To be sure, most of the important cases came out the right way. But the Four Dissenters (David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens) made it clear that they will not budge an inch, on any issue, no matter what. Their extremist rhetoric, in contrast to the cool, almost boring prose of most of the conservative majority, proclaimed their intention to make big changes if only they can get another vote. The Court hangs by a thread.

In the next few years, in all likelihood, three Justices will retire. That might not matter so much if decisions were squarely based on the law”on text, history, practice, and precedent. But in the partisan atmosphere of today’s Supreme Court, decisions are based on the Rule of Five”five votes win”and not much more than that. In many cases, there is barely a veneer of collegiality or deliberation. Rarely in history have the divisions on the Court been so raw.

For example, in Kimel v. Board of Regents , the Court held for the fifth time that Congress cannot override state sovereign immunity. Justice Stevens, who dissented in the earlier cases, joined by the rest of the Four, called the principle underlying these decisions “so profoundly mistaken and so fundamentally inconsistent with the Framers’ conception of our constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court.” (This from a Justice who insists that Roe v. Wade must be followed in every detail.) The majority responded that the Dissenters’ refusal to follow precedents when they disagree with them “makes it difficult to engage in additional meaningful debate.” To the rest of us, it means that constitutional law is determined not by authority and argument, but by raw voting power. Whoever appoints the next few Justices will determine the meaning of the Constitution in dozens of important areas.

Most of this term’s cases should not have been so hard, and the decisions should not have been so close. Take Boy Scouts of America v. Dale , in which the Court held it unconstitutional for a state court to force the Boy Scouts to appoint openly homosexual scoutmasters. It is fundamental to a free society that private citizens must be able to form groups to espouse their moral views and choose leaders accordingly. No one has the civil right to assume leadership of an organization when he does not agree with the organization’s message. That should have been uncontroversial. The notion that every private group must be open to every person, without “discrimination,” means that every group must be alike. That would be the death knell of genuine diversity.

It would be comforting to think that even supporters of gay rights would recognize the importance of this principle. It used to be a commonplace that freedom must be protected even for those with whom we disagree. Yet not one of the Four Dissenters saw it that way.

Justice Stevens’ dissenting opinion for the Four was the most strident of the term. “Like equally atavistic opinions about racial groups,” he wrote, the opinion that homosexual conduct is immoral is “nourished by sectarian doctrine.” The harm created by this “prejudice” would be “aggravated by creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers.” Translation: if we think your opinions are “atavistic” or “prejudiced,” or the product of “sectarian doctrine,” you forfeit your First Amendment rights. Is there a civil libertarian in the house?

Once upon a time, liberals were in the forefront of protecting the freedom to dissent from the orthodoxies of the majority. That is the purpose of a “constitutional shield.” I like to think that Justice William Brennan (to name one honorable example) would have replied that it is utterly irrelevant whether the Justices think the Boy Scouts’ views are right or wrong. The issue was whether there is a right of freedom of association”for everyone. It is a sad day when the so“called “liberals” on the Court bloc vote against civil liberties when the dissenter is a group they deem “atavistic.”

It is even more frightening to contemplate the possibility that Justice Stevens’ opinion may have been drafted as a majority. There is considerable evidence that was the case. It is customary for each Justice to be assigned at least one majority opinion from each sitting, and highly unusual for one Justice to write two majorities in major cases from a single sitting. Yet Justice Stevens produced no majority opinion for the April sitting, and Chief Justice William Rehnquist wrote the majority for two. Moreover, with its lengthy recitation of the facts, sparse citations to the majority, and comprehensive analytical structure, Justice Stevens’ opinion has the outward appearance of a majority opinion. Could it be that someone (Justice Anthony Kennedy?) flipped his vote at the last minute, turning Chief Justice Rehnquist’s dissent into a majority?

Mitchell v. Helms , the school aid case, presents a less somber picture. Although Justice Souter wrote an interminable (forty“nine page, thirty“two footnote) dissent, Justice Breyer broke from the Four to cast the sixth vote to uphold a program of assistance to nonpublic schools. In a gutsy, powerful, plurality opinion, Justice Clarence Thomas cut through the “vast, perplexing desert” of fine lines and distinctions that have plagued this area of the law, and announced a simple and logical rule: the government must be neutral toward religion and religious institutions. Most notably, he condemned the line of decisions that held that so“called “pervasively sectarian” institutions are ineligible to participate in public programs. He pointed out the “shameful pedigree” of this term in anti“Catholic bigotry and the “offensiveness” of “trolling through” the religious beliefs of institutions to determine whether they “take their religion [too] seriously.” (What a contrast to Justice Stevens’ notion that moral judgments based on “sectarian doctrine” are undeserving of constitutional respect.) He held that “the religious nature of the recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose.” Just so.

Justice Sandra Day O’Connor’s concurrence, joined by Justice Breyer (his first break with the Four Dissenters on any case of significance), was more cautious and less clear. But even these two “moderates” made major steps toward a sensible Establishment Clause jurisprudence, stripped of the old hostility to religion (and especially to Catholic institutions). Moreover, Justice O’Connor strongly implied that a “true private“choice program” would be permissible. That is good news for school choice advocates.

The question remains whether any of these decisions really matter. Usually, constitutional law builds like the sediment at the bottom of a lake, with each layer affecting but not dictating the shape of the next. In the almost thirty years since “conservatives” have presumably controlled the Court, they have overruled only a handful of significant precedents, and usually only after they had been thoroughly undermined by the course of decision making. That respect for the past reasserted itself this term in the surprising 7“2 reaffirmation of the benighted Miranda decision, and it played a part in the partial“birth abortion case.

The Four Dissenters apparently are prepared to sweep aside the unwelcome decisions of the past, if only they can get the votes. To an extent rarely seen in the history of the nation, the content and meaning of the Constitution appear to be up for a vote in the next presidential election.

Michael W. McConnell is Presidential Professor at the University of Utah College of Law. Professor McConnell represented the petitioners in Mitchell v. Helms and Boy Scouts of America v. Dale , and argued Mitchell.

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The Supreme Court in 1998

Sun, 01 Nov 1998 00:00:00 -0500

When the Supreme Court packs up its bags at the end of June each year, court watchers invariably scan the year’s work for evidence of ideological trends. In keeping with the myth that the current Court is “conservative,” the public is generally regaled with a chorus of alarms or expressions of relief, as the decisions warrant. Perhaps it is time to recognize that the balance of power on the “Rehnquist Court” is with the center-left. To be sure, the glory days of judicial activism are over, but that does not make the Court “conservative” in any serious way. The Rehnquist Court is mostly nonideological, with a tendency to make symbolic gestures toward the politically fashionable ideas of the secular elite. Seven appointments by Republican Presidents have left astonishingly little mark.

This term was no exception. About half the decisions were unanimous. Justice Anthony Kennedy was the most frequent swing vote; Chief Justice William Rehnquist, surprisingly, was second. Justice Clarence Thomas departed from his fellow conservatives more often than in the past. Justice Sandra Day O’Connor did so less often. Of the divided cases, the conservatives won a few small victories for property rights and the liberals won a few––more significant––victories for expanded civil rights liability. The most surprising decision of the term was that Ellis Island is not in New York. If I were a Justice, I would hold that the Supreme Court building is not in the District of Columbia.

The most significant cases of the term were the sexual harassment decisions, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton . This is a notoriously confused area of the law, and the Court’s signal contribution this year was to make it marginally less so. In theory, sexual harassment cases involve “statutory construction”––determining the meaning of a law passed by Congress. But since federal statutes say nothing about sexual harassment, and Congress is hardly anxious to take on the thankless task of telling us what it means, the courts have been forced to make up the law, both procedural and substantive, out of whole cloth.

The cases posed the question: When can employers be sued for acts of sexual harassment where the employer was not aware of the conduct and the worker suffered no adverse employment consequence? In 7-2 opinions, the Court held that employers are liable for the offensive conduct of their supervisory employees, but may raise an affirmative defense if they took “reasonable care” to prevent sexual harassment and the worker failed to take advantage of “any preventive or corrective opportunities provided by the employer.”

This expansion of liability will almost certainly generate more lawsuits, since the promise of money damages creates an incentive for workers to eschew informal resolutions of workplace problems. Some employer groups have nonetheless praised the decision on the ground that it brings greater clarity to the law. That may be true, but the decisions still leave important questions unanswered. For example, the Court has provided little guidance about what an employer must do to establish “reasonable care.” Indeed, the Court provided no guidance at all, except to hint that employers should promulgate an anti-harassment policy, make it known to all employees, and provide a complaint procedure. Prudent investors will buy stock in harassment law consulting firms.

Interestingly, the Court reached a different conclusion for cases of sexual harassment under Title IX of the Civil Rights Act of 1972, which prohibits sex discrimination in federally funded educational programs. In Gebser v. Lago Vista Independent School District , written by Justice O’Connor, the Court held that a public school district cannot be held liable for money damages for sexual harassment of a student by a teacher unless the district had “actual notice of, and [was] deliberately indifferent to,” the misconduct. That is a far more difficult standard for plaintiffs to meet. It is, nonetheless, a sensible decision. The principal statutory remedy for Title IX violations is administrative, with notice to the offending school district and prospective remedies. Some twenty years ago, the Court decided to allow private suits for money damages under Title IX, even though the statute made no mention of them. The Gebser case did not overrule that decision, but it recognized that when Congress chooses to rely primarily on enforcement tools other than private litigation, the Court should hesitate before creating expansive doctrines of liability.

In the employment cases, the Supreme Court seemed oblivious to the consequences of unleashing plaintiffs’ lawyers on the nation’s workplaces to enforce codes of civil behavior. Plaintiffs’ lawyers, advocacy groups, and juries are unlikely to draw fine lines between “hostile” environments and mere boorish (or politically incorrect) behavior. Employers, faced with liability if they do not do “enough,” but no liability if they do “too much,” have every incentive to go beyond the theoretical requirements of the law: to engage in ever more intrusive monitoring of the workplace, to root out sexually themed conversation if it might offend anyone . (Employment lawyers have, for example, suggested that jokes about the President and Ms. Lewinsky might be too risque for the nation’s workplaces.) It is hard to believe that this outbreak of prudishness will improve civility, or ease the entry of women into the workplace on equal terms. It is more likely to breed fear and resentment.

Even apart from the sexual harassment cases, the conservatives on the Court did not have a good year. Their only significant 5-4 victories in noncriminal constitutional cases were in relatively minor property rights disputes. In Phillips v. Washington Legal Foundation , the Court held, unsurprisingly, that interest on client trust accounts belongs to the client and cannot be taken by the state and distributed to worthy causes. It had become common practice for states to use the proceeds of these trusts to pay for low-income legal services, and thereby avoid legislative restrictions on the use of appropriated funds. Now legal services lawyers will have to raise funds the old-fashioned way.

More surprisingly, in Eastern Enterprises v. Commissioner of Social Security, the Court struck down a 1992 federal statute requiring companies that employed coal miners 35-50 years ago to pay into a retirement benefit plan they never agreed to fund. Four Justices (Rehnquist, O’Connor, Thomas, and Antonin Scalia) concluded that this was an unconstitutional “taking” of private property, and Justice Kennedy concluded that the Act violates the Due Process Clause. The decision was not surprising on first principles: money is property, and the property was taken. But in previous cases, only slightly less egregious, the Court had blessed Congress’ ability to impose retroactive obligations on companies for the benefit of retired workers. The case could be of considerable importance if it breathes life into the old idea that retroactive legislation violates the rule of law.

In Clinton v. City of New York , the Line Item Veto Act decision, the Court split along unusual lines, with the surprising troika of Scalia, O’Connor, and Stephen Breyer in dissent. The Act, passed in 1996 as part of the Republican “Contract With America,” authorized the President to “cancel” any specific items of spending or limited tax benefits if he found that this would reduce the budget deficit, not impair any essential governmental function, and not harm the national interest. He was required to report the cancellation to Congress, which then could repass the provision as ordinary legislation under expedited procedures. The majority held that this is a violation of Article I, §7, which permits the President to veto legislation only in its entirety.

The majority opinion is not convincing. As Justice Breyer pointed out, when the President “canceled” certain spending items, “he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.” The only real constitutional question is whether Congress may delegate to the President the authority under certain circumstances not to spend funds Congress has authorized. For almost two hundred years, until Richard Nixon abused the power, Presidents “impounded” (meaning refused to spend) funds under various circumstances, consistent with the implied will of Congress. Since the 1930s, Congress has had extraordinarily broad power to delegate discretionary authority to the executive branch, so long as it prescribes an “intelligible principle” according to which the executive must act. This can include such broad standards as the “public interest, convenience, or necessity.” It is hard to see how the Line Item Veto Act could be struck down under these precedents.

Fortunately, the damage done is easily remedied. If Congress wishes to reenact the Line Item Veto Act in substance, all it needs to do is to rephrase it and impose more specific standards; the advantage of a formalistic opinion is that it invites a formalistic response. National Endowment for the Arts (NEA) v. Finley was the constitutional case of the term with the greatest potential impact on the tone and quality of our public culture. Responding to public outcry over incidents where the NEA funded art of a homoerotic, sacrilegious, or otherwise offensive nature, Congress passed an amendment requiring the Endowment to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” The so-called “arts community” reacted with indignation to the notion that, when accepting the public’s dollar, it should comply with the public’s sensibilities. Opponents of the provision went to court and persuaded the Ninth Circuit Court of Appeals that the amendment is unconstitutional on its face.

A six-Justice majority led by Justice O’Connor upheld the amendment on its face. It did so, however, by interpreting the statutory language as “advisory” and as “aimed at reforming procedures rather than precluding speech.” The Court thus ducked the significant question: What limits, if any, apply to the government’s decision to grant or withhold subsidies for speech or artistic expression?

Justice David Souter, the sole dissenter, would have confronted the issue head-on. According to Souter, the government may discriminate on the basis of viewpoint only when the government itself is speaking or when it is providing funds to private parties to convey the government’s own message. When the government provides broad-based subsidies to speakers to convey their own ideas, the government may make restrictions based on content (for example, it may fund poetry and not rock-and-roll) but may not discriminate on the basis of viewpoint. Since, in his opinion, the considerations of “decency” and “respect” are “quintessentially viewpoint based,” Justice Souter argued that the statute is unconstitutional on its face.

Justice Scalia, joined by Justice Thomas, took the opposite tack. According to Scalia, the First Amendment is “inapplicable” to government decisions about the funding of speech. Consequently, when establishing a program of subsidies for artists, Congress can discriminate on the basis of viewpoint as well as content.

In my opinion, Justice Souter’s legal categories are correct, but he was wrong in concluding that “decency” and “respect for diverse opinions” are viewpoint-based restrictions. Justice Scalia’s distinction between funding and regulation is inapplicable in an age when government most often asserts its power through selective funding and through control over public land and institutions. Justice Scalia joined the Court’s decision three years ago in Rosenberger v. University of Virginia , holding it unconstitutional for a public university to bar student publications from receiving money on account of their religious viewpoint. It is inconsistent to say, now, that the First Amendment does not apply to exclusions from government funding.

To make these legal distinctions work, however, the idea of “viewpoint discrimination” has to be limited to cases in which the government seeks to exclude participants on the basis of the philosophy, worldview, or opinions they express rather than the manner in which they express them. The NEA Act satisfies this, more sensible, definition of viewpoint neutrality. It is impossible to imagine a “viewpoint” that would be excluded by the standards of “decency” and “respect for diverse opinions.” Even the viewpoint that one should be indecent or disrespectful can be expressed decently and with respect for the sensibilities of others.

Indeed, if Justice Souter is correct that “decency” is “quintessentially viewpoint based,” it is hard to see why “artistic excellence” is any less so. Doesn’t this favor “mainstream” artistic tastes (at least in the “arts community”) over other artistic perspectives? Is it conceivable that the NEA would fund art that portrays homosexuality as immoral or a woman’s proper place as being in the home? What about artists who wish to rebel against the prevailing standards of artistic excellence in the most powerful way they can: by producing art that is inartistic or mediocre? Excluding them is no less (and no more) “viewpoint based” than excluding those who wish to express their contempt for “mainstream mores,” or for their fellow citizens, by producing art that is indecent or disrespectful of others. If Justice Souter’s analysis is correct, the proper result is not to fund indecent or disrespectful artists, but to strike down the entire statute.

Unfortunately, not a single Justice embraced this analysis. Souter fell for the idea that the “arts community” should tap public funds but have no public responsibility; Scalia and Thomas would abandon constitutional protections against the power of the purse; the other six Justices were content with a muddle. This decision, along with the workplace sexual harassment cases, suggests a theme: the Court is unwilling to stand up for common sense when fashionable political opinion runs strongly the other way. The Rehnquist Court rarely does much harm, but neither does it show much courage.

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Breaking the Law, Bending the Law

Sun, 01 Jun 1997 00:00:00 -0400

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For the Religious Freedom Restoration Act

Sun, 01 Mar 1992 00:00:00 -0500

For those who are committed to protecting the unborn and to preserving our traditional moral heritage, it is a mistake to oppose the Religious Freedom Restoration Act⁠—a mistake of both principle and tactics. It is a mistake of principle because the Act seeks to restore the most precious of our constitutional rights, the right to carry out our duties to our Creator in accordance with the dictates of our many religious faiths. It is a mistake of tactics because the protections of the Act are of immediate practical importance to the traditional values movement.

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