The recess appointment case was not the only unanimous decision today. In another 9-0 loss for the left, the Supreme Court in McCullen v. Coakley struck down a Massachusetts law erecting a 35-foot barrier around the entrance to all abortion clinics. Strangely, the court held that the law was not content-based (what, other than anti-abortion speech, was it inhibiting, guys and gals?) but was overly broad. Chief Justice John Roberts writing for himself and five others concluded:


The Supreme Court building. (Agence France-Presse via Getty Images)

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.

Although the administration was not a party to the suit, it did file an amicus brief, which obviously the court felt was not compelling.

The case is interesting on a couple of levels, including the left’s unceasing demand to shut up its ideological opponents. Remember, these pro-life people weren’t screaming or harassing women. To the contrary, the court found: “Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.” In other words, the pro-abortion people want their opponents to appear only in the distance, as a crazy mob. But politely talk to a woman and hand her literature? This the pro-choice (pro-uninformed choice?) cannot tolerate. An opposing viewpoint sneaking by their minders to reach an unschooled public is simply too much to endure. You can understand why the Framers didn’t leave free speech up to a majority vote.

The other noteworthy aspect is that in both this case and the recess case, Justice Antonin Scalia wrote the concurrence (in McCullen, Justice Samuel Alito wrote a second concurrence), in essence accusing the majority of using twisted legal reasoning to get unanimity. In the recess case, he implored the majority to find any appointment other than inter-session recesses to replace vacancies during the recess are invalid. Justice Stephen Breyer there gave a limited ruling that simply turned on whether the Senate was in recess. Whatever the merits of the two arguments, I think the majority as a matter of institutional integrity and separation of powers was right — just as the justices in the Nixon tapes case were — to provide as united a front as possible against an overreaching executive. Better not to leave the impression that this was a close call than to be pristine in reasoning. To the extent conservatives want to send a strong message to the president to curb his imperial ways they may indulge the majority on this one.

In the abortion case, it was Roberts’s turn to strive for unanimity. In essence, he gave a lot to liberals — holding that buffers aren’t content-based restrictions deserving of strict scrutiny, but in this case simply too broad. Buffers of some undetermined distance? Maybe. The court’s decision on this point was dictum — unnecessary to the decision — because it ultimately found the law too broad. Here I think Scalia was right. Who cares if yet another abortion case is 5-4 (as it would have been had Scalia written the majority and lost the liberals)? Here the thirst for unanimity simply results in tortured reasoning. As Alito pointed out in criticizing the court’s specious reasoning that this was not a content-based law:

Consider this entirely realistic situation. A woman enters a buffer zone and heads haltingly toward the entrance. A sidewalk counselor, such as petitioners, enters the buffer zone, approaches the woman and says, “If you have doubts about an abortion, let me try to answer any questions you may have. The clinic will not give you good information.” At the same time, a clinic employee, as instructed by the management, approaches the same woman and says, “Come inside and we will give you honest answers to all your questions.” The sidewalk counselor and the clinic employee expressed opposing viewpoints, but only the first violated the statute.

In short, the court for whatever reasons is putting emphasis on unanimity. In the case impressing on an overreaching executive the errors of his ways, that is entirely appropriate. Simply to get “everyone on board” seems a less compelling justification for a badly reasoned majority opinion. In any event, the administration had an 0-18 day at the court on these two high-profile cases. Seems like it doesn’t understand the Constitution all that well.

 

 

 

 

 

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.