I never expected the Supreme Court to approve President Obama’s “recess” appointments to the National Labor Relations Board – that a weekend at home does not constitute recess seems obvious to me. Did I expect that the decision would be unanimous? I don’t know that I gave it much thought, but I am glad that it was because it takes away any feeling that Supreme Court justices, like so many others in high level federal positions, are not always partisans. Whether this opinion has any lasting import, I am not sure. Someone has to decide what to do about cases decided by the Board while the Board included unconstitutional appointees, but the assumption is that those same appointees, properly approved by the Senate, will figure out a way to ratify their actions at one stroke. But we shall see.
On the other hand, the Court’s opinion in the Massachusetts abortion clinic buffer case was a big surprise. Not so much the outcome, I guess, but certainly it surprised me that this too was a 9-0 decision. The issue is whether Massachusetts could require a 35 foot buffer zone between protestors and the clinic entrances, as a way to protect women availing themselves of the clinic’s services. The majority opinion apparently said that a 35 foot buffer zone is too broad. Consenting opinions would have put even stronger limitations on the ability of the state to deprive protesters of the right to protest at the clinics.
But if a 35 foot buffer is too broad, what about 30 feet, or 20 or 15? Some years ago the Court approved, I believe, an 8 foot buffer under Colorado law, and did not mention this case, certainly did not overturn it. Where this leaves state or local legislators, or police departments, is unclear. Is any buffer zone appropriate? If one is implemented, do we have to wait until a case comes up to the Supreme Court again? That of course takes years.
And does this affect other buffers? What about those laws that say that you can’t have guns near schools or churches (Second, not First, Amendment, but…..), or what about laws that don’t let political supporters pass out campaign literature too near polling places? You can think of many other possibilities.
First Amendment cases are always about balancing one right against another. No current justice believes in the sanctity of free speech in the way that, say, Hugo Black did, and perhaps no one is as flexible as Oliver Wendell Holmes was. I am not sure.
But I would expect that, in police power cases, the Court would defer to local decision making unless the limitations on free speech were flagrant. And 35 feet is not a great distance – clearly a protester can make his or her point from this distance. Whether this decision will lead to violence against women seeking an abortion or counseling, I obviously don’t know, although I would be surprised if it doesn’t. Abortion opponents will obviously be revved up by this decision, and some will undoubtedly be over excited and believe that anything is acceptable.
You can see that I would have concluded something very different if I were on the Court (chuckle at the thought). And I guess I am glad that the Court didn’t reach this conclusion on a 5-4 vote, with the 5 Catholic Justices voting one way and the 4 Jewish Justices another. But, boy, the 9-0 really surprises me.
Of course, I am not writing a legal opinion here, and I haven’t read the two Court opinions. This is just my initial reaction.