The 1st Amendment Playbook: It's Not Just for Liberals Anymore

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Feb 28, 2018

The Supreme Court’s February argument cycle winds down today with the third of three First Amendment cases argued this month—a good occasion to take a look at the court’s First Amendment docket these days. And remember the warm glow of love that Justice Ruth Bader Ginsburg basked in during the winter break? We look into why some party-poopers think the adulation should be notched back a bit. Thanks for reading our brief, and please share your thoughts at tmauro@alm.comand mcoyle@alm.com.

It’s Not Free Speech as Usual at SCOTUS The only case being argued before the U.S. Supreme Court today is a quirky one: Minnesota Voters Alliance v. Mansky, a First Amendment challenge to a Minnesota law that prohibits wearing political apparel at polling places. But when you think about it, a lot of the court’s First Amendment cases have been quirky lately—in the sense that they feel different from cases brought during the latter part of the 20th century. Take some other First Amendment cases on the docket this term: Janus v. AFSCME Council 31, asking whether “agency fee” arrangements imposed on non-union members amounts to compelled speech, and Masterpiece Cakeshop v. Colorado Civil Rights Commission, also making a free speech claim in support of the right to not bake a wedding cake for a same-sex couple. All three were backed by conservative advocacy groups: Janus by the National Right to Work Legal Defense Foundation, Minnesota Voters Alliance by the Pacific Legal Foundation, and Masterpiece Cakeshop by Alliance Defending Freedom. It’s further proof of a long-running trend: First Amendment arguments are no longer the sole province of liberals. To discuss all this, we caught up with First Amendment expert Sonja West, a University of Georgia Law School professor and former clerk to Justice John Paul Stevens. She participated in a bar-bench-media panel discussion in Georgia on this subject. Some of her thoughts: → “I agree that the free speech cases at the Supreme Court look very different today than those of years past. The court is no longer grappling with more traditional free speech issues like burning the flag, banning books, or publishing the Pentagon Papers. Instead, a lot of the cases the court is deciding now feel like they have been snatched from other sections of the constitutional law casebook such as religion or privacy or from other law school classes altogether like employment or administrative law.” → “It’s easy to see that something has changed simply by looking at which justices are supporting the speech claims. On the Roberts Court, it is primarily the conservative justices who are behind these decisions, whereas on the Rehnquist Court it was more evenly split. In the days of the Brennan Court, of course, free speech cases were the special darlings of the more liberal-leaning justices.” → “Because the Roberts Court has shown that it is open to considering free speech arguments in a far broader range of areas than previous courts, many conservatives have embraced free speech claims as a promising avenue to score some wins. And it's become completely trite to say, but Justice Kennedy is really at the center of all this. He is, of course, the key swing vote in many cases, and he sees himself as a strong First Amendment advocate. Thus, lawyers have realized that waving the First Amendment flag can be a great way to get Justice Kennedy's attention.”

Addressing the Cult of RBG At nearly 85, Justice Ruth Bader Ginsburg can still stir controversy on and off the bench. The "rock star" receptions she received during appearances over the court's winter break triggered some thought-provoking commentary about the adulation of judges and justices last week.

In an op-ed piece in the Los Angeles Times, Richard Hasen of the University of California Irvine School of Law suggested the "left should tone it down" with worship of Ginsburg. Hasen warns, "there is something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era. We've divided the Supreme Court into teams. We have our justices, champions who push our side's agenda. The other side has their justices, villains intent on destroying America." Northwestern's John McGinnis writes on the Law and Liberty web page that Ginsburg is basically not worthy of adulation and he points to her "inappropriate comments" and how "other justices on the left surpass her" in their achievements on the high court. "And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice," he concludes. But Paul Horwitz at the University of Alabama School of Law dissents from McGinnis' comments. "Setting aside any debates on the quality of Ginsburg's work as a justice, I think this starting point is seriously flawed. It treats the 'Notorious RBG' story as beginning once she joins the Court and having little or nothing to do with the whole arc of her professional life. Starting the 'Notorious RBG' calendar in 1993 ignores all that she did as perhaps the greatest architect and champion in the past 40 or 50 years of women’s legal and constitutional rights."

“He’s not bashful. He knows he’s in the middle of this thing. He knows that he’s the vote that’s going to tip it one way or the other. And he knows how he’s going to come out. But he decided to be very coy.” —Theodore Olson, Gibson, Dunn & Crutcher partner, discussing the silence of Justice Neil Gorsuch during Monday's argument in the union fees case, Janus v. AFSMCE.

“With Respect, I Dissent” Justice Stephen Breyer’s lengthy oral dissent in the immigration case Jennings v. Rodriguez on Tuesday followed in a long tradition of justices signaling their discontent with what the majority has done, and hoping that their dissent will plant a seed for future reconsideration. “I exercise the privilege we have—though rarely used—to dissent orally,” the late Justice Lewis Powell said in 1979 as he read a dissent in Davis v. Passman in 1979, a sex discrimination ruling. “This is a uniquely important case.” As we noted in our coverage, Breyer has exercised his privilege 20 times since joining the court in 1994. Here are two of his most noteworthy oral dissents: ➤ In the 2007 case Parents Involved v. Seattle School District No. 1, Breyer forcefully objected to the plurality opinion that ruled against school assignments that took race into account in public schools. “This is a decision that the Court and the Nation will come to regret,” Breyer said. Court-watchers took his caustic dissent as a sign that he was frustrated with the gowing dominance of the court’s conservative wing. ➤ Glossip v. Gross, a 2015 death penalty case, gave Breyer the opportunity to urge the court to reconsider the constitutionality of the death penalty. “I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.” The court has not yet done so, but his dissent renewed the debate over capital punishment.

Dialing Congress During Tuesday's arguments in United States v. Microsoft, several justices clearly thought Congress should step in and modernize the 1986 Stored Communications Act. No one had ever heard of "clouds" in 1986, said Justice Ruth Bader Ginsburg. Justice Sonia Sotomayor also asked Deputy Solicitor General Michael Dreeben and Microsoft's E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe if it wouldn't be better to just maintain the status quo, but she added, "We did take the case." Justice Stephen Breyer asked if the act—language permitting—could be read to adapt it to modern times. Both lawyers told the justices it was the court's duty to interpret the statute and, as Rosenkranz said, "not to innovate." Outside the court after the arguments, Microsoft president and chief legal officer Brad Smith said: "As I think the oral argument made abundantly clear, there are a variety of factors, important nuances that need to be considered in order to ensure that law enforcement can do its job, and people's privacy rights can be protected. And there is only one institution in this country that can balance all of the careful nuances that need to be considered. That institution is across the street, it is in our capitol building, it is in the United States Congress." Rosenkranz added: "This is a case with enormous international ramifications; it is a case that Congress is going to have to solve; it is a case that other countries care very deeply about, and only Congress can present the ultimate solution." Bipartisan legislation has been introduced in both chambers of Congress. The CLOUD Act (Clarifying Lawful Overseas Use of Data) has been referred to House and Senate committees but no other action has been taken. Read more: Justices' Heads Were in the Cloud at Microsoft Email Arguments