Moderates are vilified, even in mainstream political discussions, for contributing to any number of social ills, simply by touting principles such as open-mindedness and civil discourse. Too many see important issues as involving only one side. They take the unhelpful (and logically fallacious) view that unless you’re fully supporting a cause, you are undermining the cause. Just this week, my signing up for an email list that advocates for immigrants’ rights directed me to a fundraiser denouncing moderates for their willingness to “listen to both sides.” Two other links sent to me by friends this week – one on the hate crime charges against the man who yelled at a woman for wearing a T-shirt depicting the Puerto Rican flag, and one on the accusations against author Junot Diaz – are good opportunities to reflect on how ever-vanishing moderates can help save our political discourse and culture.
The robust protection of our constitutional rights depends on public perception that the Supreme Court is not a nakedly political institution. Unfortunately, this perception is being tested. Take this (satirical) quiz to find out how you are contributing to the demise of our Constitution.
A strong form of legal realism, or the view that judges analyze and interpret the law to achieve the policy results they want, can be a self-fulfilling prophesy. Believing that judges disingenuously use the law for their own political aims makes people support judges who disingenuously use the law for political aims with which they agree. When it comes to constitutional interpretation, principled people can easily become partisans if they believe that their political opponents are using the Constitution in a partisan way. A vicious cycle ensues. The perception that the Constitution has been captured by the left (say, the Warren Court) leads the right to want to interpret the Constitution in a partisan way (say, the Burger Court), causing the left to perceive this politicization and want to capture the Supreme Court.
This cycle is especially corrosive in the First Amendment arena. The vitality of the First Amendment requires judges to create standards for First Amendment protection that are independent of speech’s viewpoint. However, if the First Amendment is either contracted or expanded in a partisan way, to achieve other policy goals (say, social justice or the dismantling of unions), First Amendment cynicism threatens our most uniquely American right. If the First Amendment is read too narrowly, we lose critical free speech rights. However, if the First Amendment is read too broadly – to invalidate laws that don’t actually implicate speech — we lose respect for the Amendment’s guarantees. This lack of respect, or First Amendment cynicism, ultimately threatens our speech rights as well.
When even the American Civil Liberties Union has retreated from its principled defense of First Amendment protection, the soul of the First Amendment is in jeopardy. Below are some reasons for our First Amendment cynicism and some thoughts on how to reinvigorate rule of law values.
The Court today in Becerra held invalid California’s laws requiring pro-life “crisis pregnancy centers” to alert customers that (1) the state provides low cost family planning services, including abortion services, in the case of licensed pregnancy-care facilities, or (2) that the facility is unlicensed, in the case of unlicensed facilities. Becerra is a speech case, and Masterpiece Cakeshop, decided earlier this month, was predicated on religious animus grounds (although really should be thought of as a speech case). However, the two cases seem greatly influenced by Justice Kennedy’s antipathy towards the state’s deciding, in a heavy-handed (perhaps arrogant) way, what is best for its citizens to think.
On Friday, White House Press Secretary Sarah Huckabee Sanders was asked to leave the Lexington, Virginia Red Hen because of her work with the Trump administration. The owner of the small restaurant in a town overwhelmingly opposed to President Trump privately explained to Sanders that it must uphold certain standards, “such as honesty, and compassion, and cooperation.” Sanders tweeted that the restaurant’s decision spoke more about its uncivil values than her own, and Trump, horribly and childishly, blasted the restaurant as “dirty.” Whether kicking a press secretary out of a restaurant actually upholds the Red Hen’s standards encompasses both philosophical and tactical questions. I want to touch upon a few aspects of these questions, and also to contextualize this issue with other current debates involving free speech values and property rights and liberty interests of private businesses.
Because I teach criminal procedure but write mostly about the First Amendment (I do have some Fourth Amendment pieces), I read Fourth Amendment cases differently from First Amendment cases. The Supreme Court’s decision in Carpenter v. United States is exciting because it holds that government use of cell site data to determine a defendant’s location over a period of seven days is a search, requiring probable cause and a warrant. Perhaps even more exciting, Carpenter promises to be a joy to teach.
There are so many reasons why Carpenter will be a great teaching case. Skeptical (and anxious) students prefer precise answers to thorny legal questions, but also need to be pushed to recognize a case’s inherent ambiguities and open questions. The majority and dissenting opinions give the reader snippets of clarity but also plenty of work to do to find coherence with underlying principles for future application. The case also straddles the line between “third-party doctrine” cases, so it recruits line-drawing and analogical reasoning skills. Plus, fundamentals of the doctrine are challenged by several Justices. The different opinions grapple with the relationship between property and privacy, and the Court also wades into confused areas like the connection between the Fourth Amendment and the subpoena power. This case has everything, even a lesson in cell phone technology!
Some of the most pedagogically interesting aspects of Carpenter:
I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.
I have previously written (on my own blog) about the meta logic of Hughes v. United States. In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision. (Here’s an example of the 4-1-4 prior opinion at issue in Hughes.) According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.” Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning.
Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on. What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions? This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.
Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling. However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue. The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.
The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention. The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures. However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven. With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.
Defusing Masterpiece Cakeshop
Yesterday, we watched in horror the coverage of yet another mass shooting at a school, where students experienced the most casualties. One of the most haunting and poignant interviews was that of a Santa Fe High School student who said she was not surprised by the fact that a mass shooting had occurred in Santa Fe. She had a feeling that the violence would eventually reach her school.
This is not a way children should feel. I am an adult, more emotionally and psychologically equipped to deal with fear, and I experience concerns over school shootings. I have wondered what I would do if a shooter entered my classroom. I have pondered how far I would go to protect my students. I have considered (although I have not let it affect my behavior) whether a student upset about a grade might retaliate violently.
My heart goes out to children afraid of violence in schools. I had the privilege of feeling relatively safe from physical violence when I was a student, and school has always been one of my favorite places. There are sensible solutions to this national tragedy, and these very natural, human fears, that require us to keep a clear head. Here are some thoughts on ways to approach these debates to get to those solutions.