Site Meter

Category: General Law

4

Originalism in Noel Canning, Part I

One striking aspect of Noel Canning is the unexpected role that original meaning plays. The majority emphasizes historical practice and the policies embedded in the relevant constitutional provisions; the concurrence urges a sharp focus on original meaning. Yet the majority opinion comes very close to reflecting what we know about the original meaning of the Recess Appointments Clause, while the concurrence has little basis in the evidence on original meaning.

Let’s start with the “recess” issue. In a forthcoming article, I demonstrate that the evidence cuts overwhelmingly against the notion that the original meaning of “recess” (or “the recess”) was limited to “inter-session” breaks. The majority fails to cite some useful evidence on this point, but its analysis is sound. It recognizes that ratification-era dictionaries do not distinguish between intra- and inter-session recesses and that the word “recess” was used broadly to refer to all types of legislative breaks. Also, historical practice has long reflected an understanding that “recess” applies to both intra-session and inter-session breaks.

The concurrence claims there is “strikingly little support” for the assertion that “the recess” was used to refer to intra-session breaks. But by my count, nine ratification-era constitutions use the term without limiting it to inter-session breaks, as do many state legislative enactments. There are executive-branch examples as well, such as when the Governor of New Jersey sent a message to the legislature in 1754 referring to a coming intra-session break as “the Recess.” Thomas Jefferson’s 1801 Manual of Parliamentary Practice and Blackstone’s Commentaries also use “recess” in a broad sense. In fact, there is virtually no evidence that “recess” or “the recess” was restricted to inter-session recess. The usage examples put forward to support that position usually refer to particular recesses that happen to have been inter-session. Of course, the fact that inter-session recesses were called “the recess” does not mean that other recesses weren’t also called “the recess.” As we have seen, they were.

Beyond the usage examples, a bit of analysis carries the point further. In the ratification era, New Jersey enumerated its sessions annually. During an annual session, the legislature might hold multiple work periods, which it called “sittings.” Sittings were separated by recesses that modern observers would call “intra-session” breaks. This practice looks a lot like the contemporary Senate’s, except that the New Jersey legislature had an official name for its intra-session work periods—sittings—and the modern Senate does not (colloquially, senators call them “work periods”). By contrast, Massachusetts called each sitting a new “session” and often had multiple sessions in a single year. As a result, in modern parlance an identical break would be “intra-session” in New Jersey and “inter-session” in Massachusetts. Given this variation in state practice, it seems unlikely that the Constitution adopts any particular definition of “recess” or “session.” How could we know whether it adopted that of New Jersey or Massachusetts? Wouldn’t the ratifiers in each state have viewed the Clause differently?

The concurrence ignores virtually all of this evidence. It dismisses New Jersey’s usage in a footnote without any clear explanation.

The next question regarding “recess” is how to cabin the term so that it doesn’t extend to, say, lunch breaks. There are a few possible responses. One is to take the Constitution at face value and hold that because it doesn’t set a limit, the courts needn’t worry about generating one. It is not obvious that the courts must limit recesses rather than permit the political branches to negotiate the term, constrained by the political process and the ballot box.

A similar response is to recognize that the Senate controls the “Rules of its Proceedings” and therefore can define its recesses, within reason, to protect itself from executive encroachment.

A final response is to identify features of breaks that make them constitutionally significant “recesses.” Both the majority and the concurrence take this route in Noel Canning. The concurrence decides that inter-session breaks count and intra-session breaks do not, despite scant textual or historical support for that position. The majority decides that three days is too short, borrowing arbitrarily from the Adjournments Clause, and nine days is presumptively too short, noting that in practice recess appointments have rarely been made during shorter breaks.

In my view, a better and likely more faithful position is that recesses are breaks between Senate work periods—times when senators take a break from the ordinary course business for a week or more. Here, I rely less on evidence of original meaning—we simply don’t have enough evidence to be confident that any particular meaning was correct—and more on reasoning about what information the Framers had before them and what fits with their purposes. Oddly, people tend to miss that the Framers could not have predicted future Senate practice and therefore could not have written the Recess Appointments Clause with an expectation of annual sessions. In fact, there were divergent views on what the Senate would do. Some thought it would rarely meet; others thought it would remain in session almost continually. We also lack a record of what anyone thought the Senate would call its work periods or how it might enumerate them. What the Framers surely knew, though, was the practice of state legislatures. The “work period” concept accommodates both the Massachusetts session and the New Jersey sitting. It is also the most obvious, know-it-when-you-see-it candidate for what constitutes a recess of significance as opposed to a mere lunch break or weekend. In fact, unlike those insignificant breaks, senators have long referred to the times between work periods as “recesses,” often with more specific names like the “August Recess” and the “Easter Recess.” Most important, breaks between work periods are times when senators might not be readily available.

The majority’s nine-day presumptive minimum comes close to this “work period” view, although it arrives there by relying on historical practice. The convergence may not be coincidental. A break between work periods is essentially a week or more off, which means a minimum of nine days. Perhaps, then, historical practice reflects the work period view in action—and perhaps original meaning and historical practice have been in harmony, not conflict.

3

President Pro Tempore

As a follow-up to a prior post, I want to point out a constitutional oddity.  Article I states that the House of Representatives “shall choose their Speaker and other Officers” and that the Senate “shall choose their other officers, and also a President pro tempore.”  For much of our history, the Speaker of the House has been a strong political figure.  The President pro tempore of the Senate, by contrast, has never been important in the Senate.  Why did the office remain impotent, I wonder?

The Twenty Fifth Amendment also makes the President pro tempore (along with the Speaker) the officers who must receive communications regarding presidential disability. Now it is easy to see why you wouldn’t want the Vice-President to a responsible person (conflict-of-interest), but why not the Majority Leader?  By the 1960s, which is when the XXV Amendment was ratified, it was perfectly clear that the Majority Leader was the true leader of the Senate.  Worse still, the Majority Leader is still not in the line of presidential succession–the President Pro Tempore is.  It’s a weird setup.

0

President Fred Vinson

93px-Fred_m_vinsonFred Vinson is one of the more obscure Chief Justices and is widely seen as a mediocre member of the Court.  He was appointed by President Truman in 1946 (the last Chief Justice from the Democratic Party) and served until he died in 1953.  As Carlton Larson pointed out in this terrific piece a few years ago, Vinson would be viewed very differently if he had written Brown, which he almost surely would have he had not died when he did.  Vinson penned the opinions in Shelley v. Kramer, Swett v. Painter, and McLaurin v. Oklahoma striking down racial segregation, and there is no reason to think that he could not have in Brown (though whether it would have been unanimous is another question).

What I didn’t know until recently is that Truman really wanted Vinson (a former Congressman and Treasury Secretary) to succeed him as President.  He tried to talk Vinson into running in 1952, and with Truman’s backing Vinson would have been a formidable candidate for the Democratic nomination.  Vinson declined, though, partly for health reasons and partly because he felt that a Chief Justice should not reenter politics.

0

FAN 21.1 (First Amendment News) — Group Launches Litigation Campaign to Challenge Campus Speech Codes

L to Rt: Paul Gerlich & Erin Furleigh (Iowa St. U.), Robert Corn-Revere (DWT), Greg Lukianoff (FIRE) & Isaac Smith (Ohio U.)

L to Rt: Paul Gerlich & Erin Furleigh (Iowa St. U.), Robert Corn-Revere (DWT), Greg Lukianoff (FIRE) & Isaac Smith (Ohio U.)

July 1, 2014, National Press Club, Washington, D.C. Today, two powerhouses — one a free speech activist, the other a noted First Amendment lawyer — joined forces to challenge campus free speech codes that run afoul of the First Amendment. Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE) and Robert Corn-Revere, a partner at Davis Wright Tremaine (DWT), announced that the group and the law firm would work together in a litigation campaign to change the free speech culture on many campuses across the nation.

“Unconstitutional campus speech codes have been a national scandal for decades. But today, 25 years after the first of the modern generation of speech codes was defeated in court, 58% of public campuses still hold onto shockingly illiberal codes,” said Lukianoff. “For 15 years, FIRE has fought for free speech on campus using public awareness as our main weapon, but more is needed. Today, we announce the launch of the Stand Up for Speech Litigation Project, an expansive new campaign to eliminate speech codes nationwide.”

“We at Davis Wright Tremaine,” said Corn-Revere, “are honored to be asked to participate on the important work of helping to safeguard First Amendment and due process rights of America’s college campuses as part of FIRE’s Stand Up for Speech Litigation Project. It is a privilege to represent the courageous young women and men, and the faculty members, who have opted not to follow the path of least resistance, but instead have chosen to challenge the exercise of arbitrary and illegal authority. These are acts of civic virtue . . . .”

→ The DWT litigation team will include input from two seasoned First Amendment lawyers — Ronnie London and Lisa Zycherman.

Text of T-shirt banned at Ohio University.

Text of T-shirt banned at Ohio University.

The litigation campaign was launched to challenge speech codes at public institutions on behalf of students, student groups, and faculty members. Four lawsuits were filed today in federal district courts:

  1. Ohio University — Smith v. McDavis et al 
  2. Iowa State University — Gerlich & Fuleigh v. Leath et al
  3. Chicago State University – Berry & Bionaz v. Chicago State University Board of Trustees
  4. Citrus College — Sinapi-Riddle v. Citrus Community College et al

Three of the student plaintiffs in the lawsuits — Paul Gerlich and Erin Furleigh (Iowa State Univ.) and Isaach Smith (Ohio Univ.) — took part in the press conference. Mr. Smith and his group, Students Defending Students, were told by Ohio University officials that they could not wear certain T-shirts (see photo above) because such actions would violate a school policy that prohibits any “act that degrades, demeans, or disgraces” another student, in this case women. “I’m tired of having my university work so hard to stop people from speaking,” said Mr. Smith.

Ronald London (DWT)

Ronald London (DWT)

Over at Iowa State University the fight centered around another objectionable T-shrt, this time one that purportedly violated a school owned trademark (see here).  “I feel bad and I don’t think I should feel bad about it,” Ms. Furleigh complained about censorship against her and her group, the NORML chapter at ISU. “Our university administration has prevented us from even putting the word marijuana on our designs,” Furleigh added.

Lisa Zycherman, DWT lawyer

Lisa Zycherman (DWT)

The challenges concern:

  1. restrictions on the design of T-shirts for campus organizations at Ohio University and Iowa University,
  2. engaging in expressive political activities outside a “free speech zone” while seeking signatures for an anti-NSA petition at Citrus College, and
  3. retaliation against professors for statements on a blog, purportedly in violation of Chicago State University’s broad cyberbullying policy.

→ Starting with Doe v. University of Michigan in 1989, there has been a virtually unbroken string of victories in court challenges to various college campus speech codes.

Meanwhile, Mr. Corn-Revere and his DWT team await a decision in another campus speech case he argued in the 11th Circuit on June 13th of this year — Barnes v. Zaccari. 

stairway-to-heaven-1319562-m
0

FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government. . . . False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

Read More

0

ROUNDUP: Law and Humanities 06.30.14

Jessica Silbey (Suffolk Law School) and Megan Slack are publishing an important new piece , The Semiotics of Film in US Supreme Court Cases, in the forthcoming collection Law, Culture, and Visual Studies (Springer, 2014). It’s of interest to law and film scholars, entertainment lawyers, First Amendment scholars, and law and humanities folks generally. Here’s the abstract.

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations of film to law – a semiotics of film in the high court’s jurisprudence – to decouple the notion of film with entertainment or visual truth. This chapter discerns the many ways in which the court perceives the role of film in legal disputes and social life. It also illuminates how the court imagines and reconstitutes through its decisions the evolving forms and significances of film and film spectatorship as an interactive public for film in society. As such, this project contributes to the work on the legal construction of social life, exploring how court cases constitute social reality through their legal discourse. It also speaks to film enthusiasts and critics who understand that film is much more than entertainment and is, in practice, a conduit of information and a mechanism for lived experience. Enmeshed in the fabric of society, film is political, commercial, expressive, violent, technologically sophisticated, economically valuable, uniquely persuasive, and, as these cases demonstrate, constantly evolving.

Download the full text from SSRN at the link.

law culture

Read More

0

FAN 20.5 (First Amendment News) — Move to Amend First Amendment Continues

imagesAccording to a June 26, 2014 Bloomberg BNA news story by Nancy Ognanovich & Kenneth P. Doyle:

“Senate Majority Leader Harry Reid’s (D-Nev.) priority list for Senate action in July includes plans to schedule votes on a constitutional amendment to protect the authority of Congress to regulate campaign finance, as well as a separate campaign finance disclosure measure—known as the DISCLOSE Act—that failed in previous years, aides said. . . .”

Vote in Subcommittee: “The proposed campaign finance amendment to the Constitution was approved by the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights June 18th on a 5-4, party-line vote. The measure was set to be considered June 26th by the full Judiciary Committee, but was held over.”

Substituted language: “The subcommittee adopted a substitute to Sen. Tom Udall’s (D-N.M.) proposed amendment (S. J. Res. 19) offered by panel Chairman Richard Durbin (D-Ill.). The measure would allow Congress and the states to set ‘reasonable limits on the raising and spending of money by candidates and others,’ and would further permit Congress and the states to prohibit campaign spending by ‘corporations or other artificial entities.’”

See also this op-ed by Josh Blackman: “Democrats are Trying to Rewrite the First Amendment,” American Spectator, June 25, 2014

→ For earlier coverage of this proposed constitutional amendment, see:

4

Thoughts on Noel Canning

I was pleased with the Court’s decision last week, though that just means that it came out the way that I would have decided it.  Here are a couple of observations going forward:

1.  All Noel Canning does is clarify the bargaining terms between the parties.  The Senate can now block all recess appointments by holding pro forma sessions.  A motion to hold that sort of session, though, can be filibustered.  Moreover, any Senator can turn a pro forma session into a real one by just showing up and insisting on being recognized by the chair.  Thus, a normal majority in the Senate cannot block recess appointments without cutting deals with the other party and with the President.

2.  The House can prevent the Senate from taking a recess by objecting.  This will only happen, though, if Congress is divided in its party loyalties.  While this is true now, that alignment is pretty rare.  It did not happen at all between 1933-1980, for example, though it did happen from 1981-1986 & 2001-2002 before recurring in 2011.  Still, that’s 12 years out of the last eighty or so.

3.  Somebody should write that Article about the President’s adjournment power in cases where the two Houses cannot agree on a recess.  Since the President has never exercised this authority, originalism reigns supreme!

We’ll see what Hobby Lobby has to offer in the morning.

1

FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case

I thought it might be interesting to share excerpts from some of the commentary on McCullen v. Coakley. Here are 9 views on the case:

#1 — The American Civil Liberties Union

“This is a hard case and the majority opinion reflects the difficulty and importance of balancing two constitutional rights: the right of women to enter and leave abortion clinics free from the harassment, intimidation, and violence they have too often suffered in the past; and the right of peaceful protestors to express their opposition to abortion on the public streets outside abortion clinics.

We agree that a fixed buffer zone imposes serious First Amendment costs, but we also think the Court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws – especially regarding harassment – outside abortion clinics.

Today’s opinion makes it more important than ever that the police enforce the laws that do exist in order to ensure that women and staff can safely enter and leave abortion clinics.” Steven R. Shapiro (press release, June 26, 2014) (ACLU amicus brief here)

#2 – Judge Richard Posner

“Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?). The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

#3 – Laurence Tribe

“The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice.

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

. . . [N]either empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.” (New York Times, June 26, 2014)

#4 – Walter Dellinger

“This case is really about the unwilling listener who is forced to submit to lectures she does not want to hear at a time of stress. (It would be easy enough to a protester standing a mere 12 yards away to hold up a sign saying, “Talk to me about your choice.”) Like many of the court’s decisions, this one draws a line across society on social and economic grounds. The wealthy elite—like Supreme Court justices—rarely if ever have to make their way through crowds that surround them and berate them or even plead with them in softer voices. Those who work at the Supreme Court (or at law firms like mine) most often drive (or are driven) into underground garages at work or at doctors’ offices. It is students, secretaries, school teachers, and other ordinary people who have to get off the bus or the subway and push their way through hostile crowds of those who may get in their faces and do everything they can to impede their entrance into a clinic. The gauntlet of the final entrance is but the final step that follows from the relentless creation of hurdles that are effectively depriving the most vulnerable women of the right that was promised to them in Roe v. Wade.

The creation of a relatively small space free of protesters in front of a clinic hardly shuts off debate. In defense of the notion that the space is relatively small, I post here one of the maps in the brief for Planned Parenthood of Massachusetts and Planned Parenthood Federation of America (a brief on which I was co-counsel.)” (Slate, June 27, 2014)

#5 – Amy Howe

“Although we often think of Justice Anthony Kennedy as the pivotal vote on the Court in high-profile cases, yesterday it was Chief Justice John Roberts who played that role, writing an opinion that had the support of the four more liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan.” (SCOTUSblog, June 27, 2014)

#6 – Kevin Russell

“In today’s decision, the Court holds unconstitutional the Massachusetts law establishing a thirty-five-foot fixed buffer zone around abortion clinics in the state.  But did it, in the process, overrule Hill?  Certainly, the majority opinion by the Chief Justice does not do so expressly (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled).  Indeed, it is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.

The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill.  There’s a good argument that they would.

To be sure, there is one big difference between the laws in the two cases: Hill involved an eight-foot floating buffer zone around individuals within a hundred feet of abortion clinics, while this case involved a thirty-five-foot fixed buffer zone.  One might think that the sheer size difference could be determinative – one can still talk (albeit loudly) to someone eight feet away, and offer her literature; the decision today noted that this is much harder from the distance of thirty-five feet.” (SCOTUSblog, June 26, 2014)

#7 – Dahlia Lithwick

“While the decision is not monumentally awful in ways some progressives most feared, and certainly affords the state substantial latitude in its future attempts to protect women seeking abortions from harassment, more than anything it seems to reflect a continued pattern of “free speech for me but not for thee” or, at least, ‘free speech for people who think like me, that pervades recent First Amendment decisions at the court. More importantly, I don’t know where to locate this ruling in the burgeoning doctrine of “the right to be let alone” that Justices Alito and Thomas and Breyer have espoused, nor do I know how to reconcile it with the court’s persistent second-rate treatment of any speech that threatens to harass the justices themselves. . . .

In a gorgeously un-self-aware way, the same Supreme Court that severely limits speech and protest in a buffer zone all around its own building, extolls the unique and wonderful properties of the American boulevard in today’s opinion . . . .

But it is exhausting to keep hearing from the pro-life movement that women seeking abortions are magical pixie princesses, who must be—thank you Justice Kennedy—babied and soothed and gently counseled for the brief moments in which they contemplate abortion. As though these “difficult conversations” are really only for their own benefit. Unlike mourners, or voters, or Supreme Court justices, they simply need to be told what to do. That’s why this case is harder than a simple “yay, speech wins” reaction can capture: Privileging “gentle counseling” for some isn’t quite the same as promoting free speech for all.”  (Slate, June 26, 2014)

#8 – Hadley Arkes

“The outcome in McCullen v. Coakley may not be as bad as Justice Scalia thinks it sounds. For my own part, I think that Justice Scalia is inescapably right in seeing the statute in Massachusetts as part of a scheme to close down, in the public forum, speech that is critical of abortion. But that critique may distract us from seeing what has been accomplished in this case. John Roberts, in his opinion for the majority, has picked up on some of the critical points that Scalia himself made during the oral argument in McCullen v. Coakley — most notably, that it was quite wrong to describe the speech of Eleanor McCullen as a “protest.” For Roberts it was as critical here, as it has been for Scalia, to put the accent on the fact that Eleanor McCullen works by quietly offering information to women entering an abortion clinic.” (National Review, June 26, 2014)

#9 – Geoffrey Stone

“Critics of the decision regard [the plurality's] approach as fundamentally naïve and unrealistic about what actually happens when anti-abortion protesters gather near the entrances to these facilities. These critics maintain that the image of the grandmotherly woman calmly approaching a young woman heading into the clinic in order to have an abortion and asking her if they might chat a bit about whether this is really a good idea is wholly fanciful and blinks the reality of what actually happens at these moments. . . .

In their view, a clean, simple rule, like the one enacted by Massachusetts, is a perfectly reasonable way to deal with the world as it is, rather than the world as Chief Justice Roberts imagines it to be. In the view of the critics, the more ‘narrowly-tailored’ restrictions that Roberts would approve are not really responsive to the complex, highly emotional, and often intimidating and even dangerous situations that actually arise in these settings.

The critics maintain that requiring people to stand 35 feet away from the entrance, while still allowing them to speak from there, is a sound and reasonable compromise between the free speech rights of those who oppose abortion and the rights of those who wish to exercise their constitutional right to reproductive freedom free of intimidation by others.

Although reasonable persons can differ about how best to reconcile these competing interests, I am inclined to agree with the critics of the decision that it unnecessarily and inappropriately set aside a reasonable and sensible compromise that better adjusted the competing interests than the more ‘narrowly-tailored’ alternatives that Chief Justice Roberts held would pass constitutional muster.

. . . . [I]t is worth noting that this case must have been especially difficult for the Court’s four ‘liberals,’ all of whom are strong protectors of both the freedom of speech and the right of a woman to terminate an unwanted pregnancy. For them, Justice Roberts’ moderate, middle-ground probably gave them a resolution that, although perhaps not ideal, they could live with.” (Huffington Post, June 27, 2014)

0

Pragmatism and Formalism in Noel Canning

This is a guest post from David Arkush of the University of Richmond School of Law. He has written and article and an essay on the Recess Appointments Clause, and he is joining us to blog about NLRB v. Noel Canning.

I plan to comment on a few different aspects of NLRB v. Noel Canning in the coming days—the extent of formalism and pragmatism in the majority opinion, the roles of historical practice and original meaning, the quality and nature of the originalist analysis, and a way in which the Court could have reached a similar conclusion by slightly better means.

To take the first of those issues, the decision is already being characterized as a victory for pragmatism over formalism. I think that’s an overstatement. The pragmatism is clear enough. The Court’s foremost pragmatist, Justice Breyer, wrote the opinion, and it steers a middle path between polar extremes. The Solicitor General argued that the President has the power to determine whether the Senate is in recess, a rule that would apparently permit the President to sidestep the Senate’s advice and consent routinely. Noel Canning argued that the Recess Appointments Clause authorizes appointments only during the annual recess between official Senate sessions and only for vacancies that arise during that break, a position that would virtually write the Clause out of the Constitution. Breyer, joined by Kennedy and the remaining liberals, rejects both of these arguments. The majority codifies a reasonable, pragmatic-seeming middle ground on which the political branches had more-or-less settled in recent decades: A constitutional “recess” is not limited to any particular type of break, but it has a minimum duration. Three days is too short. Nine days is also too short—unless there is a genuine, qualifying emergency.

All this said, there are striking exceptions to the Court’s pragmatism. First is the three-day minimum for recesses, which contradicts the Court’s pragmatic reasoning without a (pragmatic) justification. Three days appears to be a strict limit, with no exceptions. See Slip. Op. 19 (“We agree with the Solicitor General that a 3-day recess would  be  too  short.”). By contrast, the Court holds that ten days is only “presumptively” too short. In some “very unusual” circumstance, such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response,” the President could make unilateral appointments during a break shorter than ten days but longer than three. Id. at 21. The Court’s reasoning here applies no less to three-day breaks. One might respond that the Senate can reconvene more readily on a mere weekend because Senators are still in Washington. But that is mistaken. Many senators, if not most, go home on the weekends.

So what is the justification for the three-day minimum? Will Baude might say it’s a countervailing pragmatic concern—the Court is preventing the president from making appointments on “nights and weekends.” But the majority doesn’t say that. To the contrary, it expresses some skepticism that the President would engage in unbridled abuse, id. at 25, and in another context, some faith that the political branches can usually work things out among themselves despite inevitable frictions, id. at 39-40. The Court says only that a three-day recess is de minimis, analogizing to the Adjournments Clause, which requires each house of Congress to obtain the other’s permission before adjourning for more than three days. Id. at 19-20. So the majority’s decision is pragmatic to a point—three days—before it tosses out its pragmatic reasoning and draws a hard rule that apparently rests on a loose constitutional analogy. This move isn’t formalist. But it’s an abrupt, unexplained, and inviolable exception to the Court’s otherwise pragmatic reasoning. Perhaps it’s the result of an internal compromise.

Second, the Court’s analysis of the Senate’s pro forma sessions is unambiguously formalist. The Court states that it must defer heavily to the Senate’s authority to determine “how and when to conduct its business,” Slip. Op. at 34, a conclusion that flows directly from the Constitution, which expressly grants the Senate control over “the Rules of its Proceedings.” Then the Court reads the Senate rules carefully and strictly, concluding that under its own rules, the Senate’s pro forma sessions were sessions as a matter of law. Slip Op. at 35-59. It expressly rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” Id. at 38.

I was pleased to see the Court take deference to the Senate seriously—at least on the question of pro forma sessions. Gerard and I were some of the lone voices arguing that the Court should defer to the Senate’s view of its own proceedings. Gerard argued that the Court should take the Senate at its word when it said it held sessions, and therefore the appointments were invalid. I argued that the Court should look beyond procedural appearances and recognize that, in this instance, deference to the Senate likely meant approving the appointments. The Senate majority appears to have supported the appointments. It held pro forma sessions not because it wanted to block them, but because the Speaker of the House of Representatives forced it to (moreover, in my view, it is probably unconstitutional for the House to interfere with appointments in this manner). But the fact that I had to qualify my position with “likely” reveals its major shortcoming. The Court reasonably declined to question official Senate records, which could be a messy and uncertain business. It cited both Marshall Field & Co. v. Clark and United States v. Ballin in holding that it should take official Senate records at face value. In short, it sided with Gerard. I think he has the honor of being the sole commentator to nail this point.

And it was a critical point. These two aspects of the opinion—the hard, three-day minimum for recesses and the formalist decision that pro forma sessions count as “sessions”—were actually adequate to resolve the case. The Court could have left open the questions regarding the type of recess and the timing of vacancies. I’ll turn to those issues in a future post, but in a sense they are surprisingly formalist as well. Despite the majority’s emphasis on historical practice, it comes much closer than the dissent-like concurrence to following what we know about the original meaning of the word “recess,” and possibly “happen” as well.