Geoffrey R. Stone's Blog, page 6

Same-Sex Marriage and the Dangers of Dawdling

Yesterday, the Supreme Court decided not to decide any of the pending cases involving the constitutionality of laws denying same-sex couples the freedom to marry. In all of these cases, federal courts of appeals had held the challenged state laws unconstitutional. What does it mean that the Supreme Court declined to review those decisions?



At the outset, it is important to understand that the Supreme Court has discretionary jurisdiction. That is, it selects the cases it will decide. On average, it agrees to decide only about 1 percent of the cases that are presented to it for review. For the Court to agree to hear a case, four of the nine justices must vote to put the case on the Court's docket. If the Court does not agree to hear a case, then the judgment of the lower court stands. In general, the justices vote to consider a case if one of two conditions is met: (1) if the lower courts are divided on the issue, or (2) if the issue is of such importance that it merits the Supreme Court's attention even if there is no division in the lower courts.



Because all of the federal courts of appeals that have considered this issue have agreed that state laws prohibiting same-sex marriage are unconstitutional, the key question is whether the issue is sufficiently important to warrant the Court's attention. No one doubts that the same-sex marriage issue is of that level of importance. Nonetheless, the justices exercised their discretion not to decide the question. Why?



One thing seems clear to almost all observers: In light of the Court's five-to-four decision a little over a year ago in Windsor v United States, in which the Court held the federal Defense of Marriage Act unconstitutional, it is virtually certain that the five justices in the majority in Windsor (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) would take the next obvious step and hold state laws prohibiting same-sex marriage unconstitutional as well. Indeed, that is why lower federal court judges have been almost unanimous since Windsor in reaching that result.



With that understanding, it is obvious why none of the four dissenters in Windsor (John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito) voted to hear this round of cases. Why would they want the Court to hear the cases when they know full well that the majority would reach the "wrong" result?



But why did the justices who were in the majority in Windsor also vote not to hear these cases? The answer, made clear by Justice Ginsburg in recent interviews, is that they would rather let the issue percolate further in the states and the lower courts so that by the time the Court finally addresses the issue it will be much ado about nothing. Why put the Supreme Court out on a limb, when they don't have to? Why risk a "backlash" against the Court for making a controversial decision when they can just dawdle until it's no longer controversial at all?



Perhaps the best precedent for this sort of behavior was when the Supreme Court delayed thirteen years after its 1954 decision in Brown v. Board of Education, which held "separate-but-equal" racial segregation unconstitutional, before it finally got around to invalidating the most emotionally inflammatory form of racial discrimination -- laws prohibiting interracial marriage. By the time the Court decided Loving v. Virginia in 1967, "only" 17 states still prohibited interracial marriage.



There are two serious problems with this strategy. First, just as the Court's hesitation on miscegenation meant that thousands of interracial couples could not lawfully marry in many states in the United States, the Court's hesitation here leaves thousands of same-sex couples in states throughout the nation without the opportunity to marry. That is no small cost to those individuals, to their families, and to their dignity.



Second, and even more important, the "inevitable" decision to invalidate all state laws denying same-sex couples the freedom to marry is not, in fact, inevitable. It is all too easy to imagine a scenario in which one of the five justices in the majority in Windsor dies before the Court finally takes up the issue, a Republican is elected president in 2016, and the five-to-four majority to protect the right to marriage equality fades into oblivion. Then a new five-to-four majority, including the four dissenters in Windsor and their new companion appointed by, say, President Christie or President Paul or President Cruz, find that there is, after all, no constitutional right to same-sex marriage.



At that point, the tens of thousands of same-sex couples who will marry in the next year or two will find the legality of their marriages suddenly open to question. And going forward, for years to come, supporters of marriage equality will be back to slogging it out, state-by-state, in a long, slow, bitter, and ugly process.



This scenario may be unlikely, but the five justices who know right now that laws forbidding same-sex couples to marry are unconstitutional should not have left us in this position. This was an unnecessary and, in my view, a reckless risk for them to take.

Our Politically Polarized Supreme Court?

In a recent public appearance, Chief Justice John Roberts expressed concern about the extreme polarization and partisanship that have gripped the other branches of the federal government. He was particularly concerned that, because of the increasingly partisan nature of the Supreme Court nomination and confirmation process, Americans might get the false impression that the Supreme Court itself might fall victim to such politicization. He assured his audience that that is not the case, that the Court is not "a political entity," and that the Court is not "divided into Republicans and Democrats." In short, he explained, that is not "how [the Court] works."



In fact, though, a good deal of the growing lack of confidence in the Supreme Court these days is due precisely to the concern that the justices are increasingly voting in ways that reflect the political values and preferences of the presidents who appointed them. Americans, in other words, increasingly believe that the justices are voting as "Republicans and Democrats." If this is so, it is not because the justices are "repaying" the favor of their appointment, but because presidents have gotten better at selecting nominees whose judicial approaches are likely to lead them to vote in ways that more or less conform to the appointing president's own political values and preferences. But is any of this true?



To test this possibility, I did a simple, back-of-the-envelope "study." Because the Court recently completed its 2013 term, I decided to look back over the Court's 1963, 1973, 1983, 1993, and 2003 terms in order to compare the justices' behavior in those terms with their behavior during the 2013 term.



I began by identifying what I thought to be the five most "important" decisions in each of those five earlier terms. That is obviously a subjective enterprise, but I made what are at least plausible judgments on that score. The 25 decisions I identified (five decisions in each of the five earlier terms) dealt with a broad range of issues, including, for example, freedom of speech, freedom of religion, abortion, terrorism, voting rights, racial discrimination, and criminal procedure.



In those 25 decisions, which spanned four decades, justices appointed by Democratic presidents voted regularly with justices appointed by Republican presidents, and vice-versa. Indeed, in not a single one of those 25 decisions were all of the justices appointed by Republican presidents on one side, and all of the justices appointed by Democratic presidents on the other side.



To cite just a few examples, in Elfbrandt v. Russell (1963 Term), which dealt with the free speech rights of Communists, the majority included three justices appointed by Democratic presidents and two justices appointed by Republican presidents, and the four dissenters included two justices appointed by Democratic presidents and two justices appointed by Republican presidents.



In Escobedo v. Illinois (1963 Term), which dealt with the right to counsel, the majority again included three justices appointed by Democratic presidents and two justices appointed by Republican presidents, and the dissenters included two justices appointed by Democratic presidents and two justices appointed by Republican presidents.



In Gertz v. Robert Welsh (1973 Term), which dealt with the freedom of speech, the majority included four justices appointed by Republican presidents and one appointed by a Democratic president, and the dissenters consisted of two justices appointed by Democratic presidents and two justices appointed by Republican presidents.



In Lynch v. Donnelly (1983 Term), which dealt with the freedom of religion, the majority consisted of four justices appointed by Republican presidents and one justice appointed by a Democratic president, whereas the dissenters included three justices appointed by Republican presidents and one justice appointed by a Democratic president.



In Planned Parenthood v. Casey (1993 Term), which dealt with abortion, the majority included five justices appointed by Republican presidents and the four dissenters included three justices appointed by Republican presidents and one justice appointed by a Democratic president.



In McConnell v. Federal Elections Commission (2003 Term), which dealt with the constitutionality of campaign finance regulation, the majority consisted of three justices appointed by Republican presidents and two justices appointed by Democratic presidents, and the dissenters included four justices appointed by Republican presidents.



In Ashcroft v. ACLU (2003 Term), which dealt with the regulation of sexual expression on the Internet, the majority included four justices appointed by Republican presidents and one justice appointed by a Democratic president, whereas the dissenters included three justices appointed by Republican presidents and one justice appointed by a Democratic president.



I could go on, but you get the point. This pattern held true in every one of the 25 cases I examined from the 1963, 1973, 1983, 1993, and 2003 terms. In not a single one of these cases, which I selected without regard to the voting pattern of the justices, did all of the justices appointed by Republican presidents vote one way and all of the justices appointed by Democratic presidents vote the other way.



Now let's turn to the Court's 2013 term, the one just completed. Different people will no doubt have different opinions on this question, but in my view the five most important decisions last term were Schuette v. Coalition to End Affirmative Action, which dealt with affirmative action; Burwell v. Hobby Lobby Stores, which dealt with religious freedom and contraception; Town of Greece v. Galloway, which dealt with legislative prayers; McCutcheon v. Federal Election Commission, which dealt with campaign finance regulation; and Riley v. California, which dealt with cell phone searches.



Here's the kicker: In three of these five decisions (Hobby Lobby, Town of Greece, and McCuthcheon), the justices in the majority consisted of all five of the justices who had been appointed by Republican presidents, and the dissenters consisted of all four of the justices who had been appointed by Democratic presidents. The contrast from the five earlier terms -- spanning a period of half a century -- is extraordinary.



For Chief Justice Roberts to suggest that the current Supreme Court is not "divided into Republicans and Democrats" may be true in the large majority of cases, but in the most important cases, the ones that matter the most to the American people, the polarization of the justices along partisan lines cannot be denied -- and it is, at least in the last half-century, unprecedented. To be clear, none of this is Chief Justice Roberts' fault, but it also won't do to deny what is in fact a reality.

The Rift in the ACLU Over Free Speech

In the context of ongoing deliberations over a proposed amendment to the Constitution to authorize the government to enact laws regulating campaign expenditures and contributions, a sharp, even bitter, rift has emerged between different generations of the ACLU's leadership over the ACLU's understanding of the First Amendment. The rift is not about whether to adopt the proposed constitutional amendment (neither side of the intra-ACLU debate has endorsed it), but about the ACLU's position on the constitutionality of campaign finance reform today.



The current leadership of the ACLU takes a strong pro-free speech position that, like the position of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, looks askance at most forms of campaign finance regulation that would limit the freedom of individuals to spend as much as they want in the political process to advance their political beliefs.



The six individuals who led the ACLU from 1962 to 1993 endorse a rather different view. In a letter sent on September 4 to the leadership of the Senate Committee on the Judiciary, they embraced a position that, like the position of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, recognizes that limitations on campaign expenditures and contributions may be necessary to ensure the proper functioning of the democratic process.



As a card-carrying member of the ACLU for 40 years and a member of the ACLU's National Advisory Council, I enthusiastically endorse the position of the collective former leadership of the organization. The sad truth is that the current leaders of the ACLU have embraced a thoughtless and reflexive conception of the First Amendment that is incompatible with the overarching values of the Constitution and, indeed, of the ACLU itself.



I say this as someone who once shared the view campaign finance regulations violated the First Amendment, but who has since come to a different set of conclusions. The reason for my shift over the years is not due to any change in my thinking about the fundamental principles of the First Amendment, but to a change in the realities of the political process over the past four decades.



At the risk of being simplistic, there are two central precepts to the ACLU's traditional understanding of the First Amendment. First, the government may never (or pretty close to never) restrict speech when it targets a particular message. This is the essential meaning of the First Amendment and it is the principle the ACLU has always, rightly, defended, even to the point of defending the right of Nazis to march in predominantly Jewish suburb of Skokie in the late 1970s. In taking that position, the ACLU was fearless, and it was correct.



Second, when the government restricts speech without regard to the particular message conveyed, it has much greater latitude, because such restrictions are less threatening to the core values the First Amendment is meant to protect. For example, although the government cannot constitutionally ban the use of loudspeakers in a residential neighborhood because the speaker is promoting Republican ideas or criticizing the mayor or opposing gun control, it can constitutionally ban loudspeakers in a residential neighborhood after, say, 10:00 at night in order to preserve the peace and quiet of the community. The ACLU has always, rightly, recognized this distinction. This does not mean that all restrictions of speech that do not target particular messages are constitutional, but it does mean that such restrictions are permissible if the reasons for the restriction substantially outweigh the harm to free expression.



The current ACLU's leadership has treated laws regulating campaign expenditures and contributions as if they fell into the first precept. For that reason, it treats these laws as profoundly threatening to core First Amendment values and as almost conclusively unconstitutional. In this judgment, the current leadership is simply wrong, and the former leaders of the ACLU have it right.



Whatever else one might think about laws regulating the amount of money individuals and corporations can spend in the political process, they do not target particular messages. They apply without regard to whether any would-be speaker is a Democrat or a Republican, whether he favors gun control or abortion control, whether she wants us to destroy ISIS or to stay our hand. For this reason, such laws are properly analyzed, as the former leaders of the ACLU understand, as falling within the second precept rather than the first.



This is not say that such laws are not troubling. They are troubling in at least three ways. First, they restrict the freedom of individuals to spend as much as they want in the political process in an effort to bring about the outcomes they support. Such laws in effect say to people, "you've spoken enough, so now sit down and shut up." That must be taken seriously. Second, to the extent such laws have a differential effect on people with differential political positions, they can have an indirect effect on what otherwise would be the balance of views in the "marketplace of ideas." Third, it is always dangerous to allow elected officials to mess around in the political process in this manner. When they adopt laws that shape the electoral process, they undoubtedly are affected by their own self-interest. That is, they are likely to support regulations that benefit them and ensure their re-election, and to oppose regulations that harm them and endanger their re-election.



For these reasons, laws regulating campaign expenditures and contributions, even if not directed at particular messages, pose serious dangers to core First Amendment values and must therefore be taken very seriously. Although such laws are not per se unconstitutional, because they do not restrict only some messages but not others, they should be upheld only if the government can demonstrate that they are necessary to further compelling government interests. Unlike the law prohibiting loudspeakers in residential neighborhoods at night, campaign finance laws must meet a very demanding standard of justification in order to pass constitutional muster.



In my view, when the Supreme Court first considered the constitutionality of such laws almost 40 years ago, no such showing could be made and the Court rightly held laws limiting political expenditures unconstitutional. Today, though, the world has changed profoundly. This is due to many factors, including the extraordinary increase in the cost of political electioneering due to the advent of technology and the profound inequality in wealth that has come to plague our nation. For those reasons, the American political process -- and our elected representatives -- are now for sale as never before in our history. As the former leaders of the ACLU point out in their letter, politicians spent an extraordinary $6.3 billion in the 2012 election cycle, and most of that money came from a relative handful of donors who are in the top one percent, indeed, the top one-tenth of one percent, of the American people in terms of wealth.



Regardless of whether one agrees or disagrees with the views of the super-rich, this state of affairs is an unmitigated disaster for American democracy. Not only does it distort our electoral process, but it corrupts our elected officials and disillusions our citizens. Bringing this situation under control, and restoring a sense of order, decency, and equality to our electoral process, are compelling interests, indeed, and the only way to address this threat to our nation's very existence is to limit the magnitude of these contributions and expenditures.



This conclusion is perfectly consistent with the long-standing principles of the ACLU, which are designed both to promote both robust and wide-open public debate and to ensure the fair and sensible functioning of our democratic process. It is unfortunate that the organization's current leadership has lost sight of those principles in the name of a blind adherence to an empty conception of "the freedom of speech."

Religious Tests for Public Office and the Constitution

A recent Washington Post article reported that the state constitutions of eight states -- Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas -- expressly prohibit individuals who do not believe in God from holding public office.



The Arkansas constitution, for example, provides that "no person who denies the being of a God shall hold any office in... this State," the Mississippi constitution stipulates that "no person who denies the existence of a Supreme Being shall hold any office in this State," the Tennessee constitution states that "no person who denies the being of God, or a future state of rewards and punishment, shall hold any office in... this state," and so on.



Are such provisions constitutional? The history of such laws goes back to the very founding of our nation, for a central question facing the Framers of our Constitution concerned the appropriate role of religion in government. For more than a thousand years, it had been the norm for Christian societies to have an established religion. At the time of the American Revolution, nine of the 13 colonies still had an established church, and most colonies expressly limited the right to hold public office to members of their established church. Over the next decade, though, Americans increasingly questioned the appropriate role of religion in the affairs of government.



A critical debate occurred in Virginia, where a lengthy struggle culminated in the adoption in 1785 of Thomas Jefferson's Statute for Religious Freedom. The preamble of Jefferson's bill condemned those "legislators and rulers" who have "assumed dominion over the faith of others, setting up their own opinions and modes of thinking as... true and infallible," and then "endeavored to impose them on others."



The men who gathered a few years later in Philadelphia to draft a new constitution for the United States were acutely aware of this debate, of the dramatic growth in religious diversity in America over the course of the eighteenth century, and of the lessons of history. They viewed religion not as a unifying force, but as a potentially divisive factor that threatened to undermine their goal of forming a "more perfect union." As James Madison, the chief architect of the Constitution, observed, "a zeal for different opinions concerning religion" has throughout history "inflamed [men] with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good."



Against that background, not only did the Framers refuse to adopt an established national religion, but they affirmatively prohibited the government to enact "any law respecting an establishment of religion" and expressly provided that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."



The Framers' approach to religion triggered a sharp response from some quarters during the ratification debates. Major Thomas Lusk of Massachusetts, for example, shuddered "at the idea that Roman Catholics, Papists, and Pagans might be introduced into office." A delegate to the North Carolina ratifying convention cautioned that under the Constitution as drafted, even "Papists... and Mahometans" could become President of the United States. A detractor in New Hampshire insisted that no man "is fit to be a ruler of protestants" who does not "honestly profess to be of the protestant religion." Despite these objections, the proponents of the "no religious test" clause carried the day, and in the Federalist Papers James Madison celebrated this provision as one of the "glories of the new Constitution."



Nonetheless, religious test clauses remained in effect in many state constitutions. It was not until 1961 that the Supreme Court finally addressed the constitutionality of such laws. In Torcaso v. Watkins, the governor of Maryland appointed Roy Torcaso to the office of Notary Public, but Torcaso was denied a commission because he would not declare his belief in God, as required by the Maryland constitution. The Supreme Court, in an opinion by Justice Hugo Black, unanimously held the Maryland provision unconstitutional.



Invoking the Establishment Clause of the First Amendment, Justice Black explained:

"Neither a state nor the Federal Government... can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person... to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" The Court therefore held that the "Maryland religious test for public office unconstitutionally invades [Torcaso's] freedom of belief and religion, and therefore cannot be enforced against him."

Since the Court's unanimous decision in Toracso, it has been accepted wisdom that governments in the United States cannot constitutionally deny individuals the right to hold public office because they do not believe in God. That eight states still have such provisions in their constitutions, even if they are unenforced, is offensive and inappropriate. But perhaps these eight states believe that Torcaso was wrongly decided? What happens then?



Suppose a person appointed or elected to public office in one of these states refuses to declare that she believes in the existence of a Supreme Being. She declares herself an atheist or an agnostic. Suppose the state then refuses to permit her to take office. Presumably, she would then sue and, citing the Supreme Court's decision in Torcaso, assert that the state's constitutional provision violates the United States Constitution. Lower state and federal courts, following Torcaso, would have no choice but to accept her claim and declare the provision invalid. It is, after all, their duty to follow Supreme Court precedent.



But now suppose the case reaches the Supreme Court. What result can we expect? For at least two reasons, the case should be easy. First, under the doctrine of precedent, the current justices would presumably follow the precedent set in Torcaso. Second, even if Torcaso had never been decided, the correct outcome seems clear: as the Court unanimously held in Torcaso, the Establishment Clause forbids religious tests for holding public office.



Sadly, given the inclinations of the five conservative justices on the Court today (Roberts, Scalia, Kennedy Thomas, and Alito), neither conclusion is certain. With respect to the doctrine of precedent, the five conservative justices have repeatedly overruled prior decisions with which they disagree. In Citizens United, for example, which dealt with campaign finance regulation, these five justices overruled a seven-year-old precedent. In District of Columbia v. Heller, which dealt with gun control and the meaning of the Second Amendment, these five justices overruled a 70-year-old precedent. In Gonzales v. Carhart, which dealt with abortion, these five justices overruled a seven-year-old precedent. Thus, if it turns out that these five justices disagree with Torcaso, there is little reason to believe that they will respect the doctrine of precedent.



But why would they disagree with Torcaso? After all, the reasoning of that unanimous decision seems clearly correct. But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court of 1961. This is so across a range of issues, but perhaps most conspicuously in the realm of religion. Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.



Just this year, for example, these five justices held that for-profit corporations have a right to religious freedom and that a town council can constitutionally begin its sessions with persistently Christian prayers. Moreover, several years ago, three of these justices went so far as to suggest that an eight-foot-tall cross erected on federal land to honor American soldiers was not an affirmation of Christian beliefs, but a generic symbol designed to honor those who died for their country.



It is, one would hope, highly unlikely that the religious test issue will ever again come before the Supreme Court. But if it does, who knows what these five justices will do? In light of the inclinations of these five justices, an issue once thought satisfactorily and definitively resolved might once again re-emerge -- to the great detriment of the nation.

Understanding the Supreme Court's Abortion-Protest Decision

In yesterday's decision in McCullen v. Coakley, the Supreme Court considered the constitutionality of a Massachusetts statute that made it a crime for any person knowingly to stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. The law was designed to eliminate clashes between abortion opponents and advocates of abortion rights that had occurred outside clinics where abortions were performed.



The law was challenged by individuals "who approach and talk to women outside such facilities, attempting to dissuade them from having abortions." The Act exempted persons entering or leaving the facility, employees or agents of the facility, law enforcement and similar personnel, and persons using the sidewalk area solely for the purpose of reaching another destination.



The Court, in an opinion by Chief Justice Roberts, invalidated the law. To appreciate the First Amendment issues presented in the case, it is necessary to have some understanding of First Amendment doctrine. In a very general sense, in evaluating the constitutionality of law restricting speech, the Court has drawn an important distinction between laws that restrict speech because of its message ("content-based" laws) and laws that restrict speech without regard to its message ("content-neutral" laws).



The Court has traditionally held that content-based laws are more threatening to First Amendment values than content-neutral laws, because they involve judgments by the government to treat some messages more or less favorably than others. For example, a law prohibiting anyone to hand out leaflets on a public bus (a content-neutral law) is viewed as much less problematic than a law prohibiting anyone to hand out leaflets supporting Republican candidates, or criticizing the mayor, or opposing same-sex marriage on a public bus. Although the content-neutral law restricts more speech, the content-based law involves the government is the suppression or disfavoring of particular ideas.



Because of this distinction, the Court generally takes a much more deferential approach to content-neutral restrictions of speech than to content-based restrictions of speech. When laws are content-neutral, the Court generally upholds them if they are "reasonable," but when laws are content-based the Court generally invalidates them unless they serve a very important government interest.



In McCullen, Chief Justice Roberts held that the challenged law was content-neutral, but that it was nonetheless unconstitutional because it was not sufficiently "narrowly-tailored" -- that is, it restricted more speech than reasonably necessary to achieve the state's legitimate ends. The effect of the law, Roberts reasoned, would be to prohibit persons who wanted, politely and calmly, to speak with individuals entering an abortion clinic in an effort to persuade them not to have an abortion. Roberts maintained that the state had no legitimate interest in preventing such conversations, and that the law should therefore be re-written to focus more precisely on the particular dangers that the state could properly seek to prevent, such as blocking entrances, disruptive noise, illegal threats and intimidation, and so on.



Critics of the decision regard this 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.



But there was a deeper and even more controversial issue lurking in the case. Justices Scalia, Kennedy, Thomas, and Alito scorned Chief Justice Roberts' opinion for treating the challenging law as content-neutral. In their view, the Massachusetts law, and similar restrictions, should properly be treated as content-based and therefore rendered virtually per se unconstitutional.



Justice Scalia argued, for example, that because the law restricted speech near abortion clinics, but not near other businesses and facilities, it clearly had the effect of disadvantaging people protesting abortion, relative to people protesting other objectionable activities at other locations. And Justice Alito maintained that because people who work at the clinics are exempted under the statute, and are therefore free to encourage abortion within 35 feet of the clinics, where anti-abortion protesters are forbidden to discourage abortion in that same location, the law is clearly content-based.



In the best part of his opinion, Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, flatly -- and correctly -- rejected this characterization. As he explained, laws that are content-neutral on their face do not become content-based for First Amendment purpose because they have content-based effects. This is so because every regulation of speech and, indeed, almost every regulation of conduct, has different effects on different people and, often, on different speakers. A law prohibiting the distribution of leaflets on a public bus will inevitably disadvantage some messages more than others.



The Warren Court recognized and abided by this principle in its 1965 decision in O'Brien v. United States, for example, in which the Court upheld the constitutionality of a law making it a crime for any person knowingly to destroy a draft card, even though it was clear that the only people who would knowingly destroy a draft card for speech purposes were those who were doing so to protest the draft and the Vietnam war. That principle has been applied consistently and basically without exception ever since.



Nonetheless, Justice Scalia fumed that "today's opinion carries forward this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." This is a completely unwarranted attack, for it was Chief Justice Roberts, not Justice Scalia, who was applying well-settled, clearly established First Amendment principles in McCullen in defining the difference between content-based and content-neutral restrictions of speech.



Finally, it 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.

Justice Scalia, Religion, and the Failure of Legal Reasoning

One of my former law professors, Harry Kalven, liked to say that "law is the process of choosing among competing analogies." At its core, legal reasoning is about trying to find insight, or logic, or common sense by comparing different situations and then striving to identify the most important similarities and differences. Analogies open some doors and close others. They shape and direct the analysis.



For example, if it is settled that obscenity is not protected by the First Amendment, then what other types of speech are also not protected by the First Amendment? Are depictions of violence protected by the First Amendment? Are depictions of cruelty to animals protected by the First Amendment? Is opera protected by the First Amendment?



To answer these questions, legal reasoning demands that we begin by asking why obscenity is not protected by the First Amendment and then trying to figure out whether these other forms of speech are similar or different from obscenity in these respects. To do this well requires not only knowledge, but insight, creativity, subtlety, and rigor. Because this is the essence of legal reasoning, a critical question is always whether we are starting the inquiry with the best and most helpful analogy.



As a lawyer and law professor, I pay a lot of attention to this skill of reasoning by analogy. It is, indeed, at the core of what I try to convey to my students. Ordinarily, Supreme Court opinions do this quite well. After all, the justices and their law clerks are quite adept at legal reasoning, and this is usually apparent in the Court's opinions. I might agree or disagree with the way they engage in the analogical process in any particular opinion, but I can almost always see what and why they are doing and I can respect the way they go about the inquiry, even if I would reach a different conclusion.



Strangely, two Supreme Court opinions this year contain what I can only describe as surprisingly inept examples of legal reasoning. This is baffling, because I know the law clerks who assist the justices in writing their opinions would never themselves make such gaffes. But there they are, clear as day.



The first of these confabulations was in Chief Justice Roberts' opinion in McCuthcheon v. Federal Elections Commission, which held unconstitutional a federal law that limited the total amount that individuals could contribute to candidates for political office. I've already written about how Chief Justice Roberts bollixed up his analysis of free speech law in McCutcheon, so rather than repeat all that here I'll simply provide a link to that earlier piece.



The second example surfaced on Monday in Elmbrook School District v. John Doe. In that case, a federal court of appeals held that a public school district's decision to hold high school graduations in a church violated the Establishment Clause of the First Amendment. That clause provides that government "shall make no law respecting an establishment of religion." The school district sought review by the Supreme Court, but the justices declined to hear the case.



There was nothing unusual in that. In any given year, the justices agree to hear approximately one percent of all the cases that seek Supreme Court review. The decision not to hear a case is not a decision on the merits, but it leaves the lower court's decision in place. It takes the vote of four justices for the Court to hear a case. In Elmbrook School District, Justice Antonin Scalia, joined by Justice Clarence Thomas, took the unusual step of writing an opinion dissenting from the Court's decision not to hear the case.



What caught my attention about Justice Scalia's dissenting opinion was not the core of his argument -- that the lower court was wrong in its understanding of the Establishment Clause, but the exceedingly odd way in which he framed the issue. At the outset of his opinion, Justice Scalia began by noting that some people, perhaps many, "are offended by public displays of religion." He then said that he "can understand that attitude" because it parallels his own attitude "toward the playing in public of rock music or Stravinsky." Moreover, he noted, he is "especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency." But, he added, the government cannot constitutionally protect his "aversion" to being exposed to such unpleasantness "because of the First Amendment." To support this proposition, he cited two Supreme Court decisions that had, indeed, held that the government cannot constitutionally prohibit private speakers from having their say in public merely because their speech offends others.



What makes this discussion odd is that none of this has anything to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech (or, rather, religious activity) by the government itself. It is true, of course, that the government ordinarily cannot suppress speech by individuals because the message conveyed offends others. This is so not only for rock music and Stravinsky, but also for flag burning, a Nazi march, and religious expression. The government cannot constitutionally forbid a speaker from handing out religious leaflets because his message offends others. But that has absolutely nothing to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech by the government itself. The analogy drawn by Scalia is flat out wrong.



Justice Scalia then compounds the problem by observing that some "of this Court's cases," decisions of which he clearly disapproves, "have allowed the aversion to religious displays" to lead the Court to hold that the First Amendment sometimes prohibits "religious displays" in "public facilities" and "public ceremonies" - "despite the fact that the First Amendment explicitly favors religion" but is "agnostic" about other types of expression.



To be perfectly candid, this borders on incoherence. What Justice Scalia seems to be saying is that because the First Amendment guarantees "the free exercise of religion," the government should itself be free to engage in "the free exercise of religion." This is wrong on multiple counts. First, the Free Exercise Clause guarantees individuals the right to practice their religion. It does not give the government the right to practice its religion -- or even to have one. This is elemental.



Second, although the First Amendment "explicitly favors religion" in the sense that it guarantees "the free exercise of religion," it does not "favor" religion when the speaker is the government. To the contrary, the First Amendment explicitly restricts the government with respect to religion, by providing that government "shall make no law respecting the establishment of religion." The Constitution gives the government broad power to take positions in all sorts of ways, but the one thing it explicitly forbids the government to do is to take positions on religion that constitute acts "respecting the establishment of religion." Thus, the First Amendment does not "favor" religious expression by the government, it specifically and unambiguously constrains it.



Third, Justice Scalia suggests that the reason the Court has interpreted the Establishment Clause to limit religious expression by the government is because some people have an "aversion to religious displays," analogous to his aversion to rock music and Stravinsky. But this completely misunderstands the essence of the Establishment Clause, which is not about protecting people from what they might see as the "unpleasantness" of religious expression, but about keeping the government neutral in the realm of religion, because the Framers understood that non-neutrality by the government would prove divisive and destructive of the very notion of "We the People." It was for that reason, and not to protect people against the unpleasantness of listening to what they might deem offensive religious expression, that the Framers, in Thomas Jefferson's words, erected a "wall of separation" between state and church.



What is really going on here is that Justice Scalia wants to tear down that wall. As he has made clear in recent opinions, he thinks it's just fine for the government to endorse Christianity. That, however, was not the understanding of the Framers of our Constitution, and it has never been the Supreme Court's understanding of the First Amendment. But his passion for that conclusion, and his "aversion" to the opposing view, have clearly clouded his legal reasoning in a way that is both surprising and disappointing.

Life in the Most Religious States

I recently came across a list of the ten most religious states in America. They are, in order: Mississippi, Utah, Alabama, Louisiana, Arkansas, South Carolina, Tennessee, North Carolina, Georgia and Oklahoma.



One might assume that life in the most religious states in the nation would approximate the idealized "City upon a Hill" envisioned some four hundred years ago by John Winthrop, the Puritan colonist who served as first governor of Massachusetts Bay Colony.



To check that assumption, I did some research:



Eight of these ten states joined the Confederacy and fought a bloody Civil War to defend the institution of slavery.



Nine of these ten states still had racially segregated schools at the time of the Supreme Court's 1954 decision in Brown v. Board of Education.



Five of these ten states are still among the worst states in the nation in terms of the continuing racial segregation of their public schools.



Eight of these ten states are among the eleven states in the nation with the highest rates of incarceration.



All of these ten states still have the death penalty.



Seven of these ten states are among the ten states in the nation with the highest percentage of their citizens living under the poverty level.



Six of these ten states are among the nine worst states in the nation in rates of obesity.



Nine of these ten states are among the twenty states in the nation with the highest rates of smoking.



Seven of these ten states rank in the bottom ten states in the nation in the overall health of citizens.



Nine of these ten states rank in the bottom thirteen states in the nation in life expectancy.



Seven of these ten states rank in the bottom ten states in the nation in the quality of healthcare.



Five of these ten states are the only states in the nation without a minimum wage law.



All ten of these ten states rank in the bottom sixteen states in the nation in minimum wage.



Nine of these ten states ranks in the bottom eighteen states in the nation in per pupil expenditures for public education.



Nine of these ten states rank in the bottom twenty states in the nation in the quality of high school education.



Nine of these ten states are among the twenty worst states in the nation in terms of gun deaths per capita.



Five of these ten states are among the ten states in the nation whose citizens watch the most online pornography.



I'm not quite sure what to make of all this. Perhaps it just means that people who live in states with bad values are more likely to turn to religion. But "city on a hill"? Probably not what John Winthrop had in mind.



Oh, one other thing: The citizens of these ten states are fervently Republican. Eighty percent of their United States senators, for example, are members of the Republican Party, whereas only thirty-six percent of the senators from the other forty states are Republicans.

Do We Need the Supreme Court?

In our system of government, the Supreme Court has the authority to declare laws unconstitutional. In our nation's formative years, this authority -- the power of "judicial review" -- was seen as an essential check against the dangers of unrestrained democracy. As James Madison explained when he proposed the Bill of Rights, "independent tribunals of justice will consider themselves... the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights" guaranteed by the Constitution.



Alexander Hamilton added that constitutional freedoms could "be preserved in practice no other way than through the medium of the courts of justice." The "independence of the judges," he reasoned, was necessary "to guard the constitution and the rights of individuals from the effects of those ill humours which... sometimes disseminate among the people themselves." Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."



Faced with constitutional challenges to government actions, courts have two alternatives: they can uphold the law and allow it to be enforced or they can declare it invalid. When they uphold the law, they permit the majority to have their way; when they invalidate the law -- and exercise the power of judicial review -- they restrict the majority's freedom of action. The existence of judicial review matters only when the courts hold a law unconstitutional. A central question in evaluating this element of our constitutional structure is whether courts have exercised this authority wisely.



There are at least two ways of answering that question. First, lawyers, legal scholars, and other experts can decide, in their professional judgment, whether particular decisions reached the "correct" legal result. Of course, lawyers, legal scholars, and other experts often disagree quite sharply over this question, depending on their preferred approach to constitutional interpretation. There are many different approaches, honestly held, and they often produce different conclusions. A justice who endorses "originalism," for example, will often disagree with one who endorses the notion of a "living" Constitution.



A different way of answering the question, focused less on law than on policy, asks whether this is a better nation because the Supreme Court has the power of judicial review. That is, has the Supreme Court's exercise of the authority to hold laws unconstitutional -- in defiance of the wishes of the majority -- made this a better or worse nation?



To give you an opportunity to answer that question for yourself, I provide below a list of twenty important decisions over the past sixty years in which the Supreme Court has held laws unconstitutional. Decide for yourself whether, in your judgment, each one of these decisions was good or bad for the nation, and then make your own assessment whether the overall result is positive or negative:



1. The government cannot constitutionally segregate students in separate black and white schools. Brown v. Board of Education (1954).



2. When the police commit an unconstitutional search, government cannot constitutionally use the evidence obtained in the search against the victim of the unconstitutional search. Mapp v. Ohio (1961).



3. The government cannot constitutionally have state-sponsored prayers in the public schools. Engel v. Vitale (1962).



4. The government has a constitutional obligation to provide a lawyer to persons accused of crime if they are too poor to afford one themselves. Gideon v. Wainwright (1963).



5. The government cannot constitutionally draw legislative districts in a way that departs from the principle of one person/one vote. Reynolds v. Sims (1964).



6. The government cannot constitutionally prohibit married couples from using contraceptives. Griswold v. Connecticut (1965).



7. The police cannot constitutionally arrest a person and then interrogate him in custody without first warning him of his right to remain silent. Miranda v. Arizona (1965).



8. The government cannot constitutionally require people to pay a poll tax before they are permitted to vote. Harper v. Virginia Board of Elections (1966).



9. The government cannot constitutionally deny government jobs to people because they were once members of the Communist Party. Elfbrandt v. Russell (1966).



10. The government cannot constitutionally wiretap phone calls without probable cause and a warrant. Katz v. United States (1967).



11. The government cannot constitutionally prohibit people of different races from marrying. Loving v. Virginia (1967).



12. The government cannot constitutionally terminate a welfare recipient's benefits for cause without first providing a hearing. Goldberg v. Kelly (1970).



13. The government cannot constitutionally prohibit the publication of the Pentagon Papers without proving that the publication would cause a clear and present danger to the national security. New York Times v. United States (1971).



14. The government cannot constitutionally prohibit a woman from terminating an unwanted pregnancy in the first six months of pregnancy. Roe v. Wade (1973).



15. The government cannot constitutionally discriminate against people because of their sex. Craig v. Boren (1976).



16. The government cannot constitutionally prohibit private homosexual conduct between consenting adults. Lawrence v. Texas (2003).



17. The government cannot constitutionally prohibit individuals from owning handguns. District of Columbia v. Heller (2008).



18. The government cannot constitutionally prohibit corporations from spending unlimited amounts of money to support the election of political candidates. Citizens United v. Federal Elections Commission (2010).



19. A public university cannot constitutionally take race into account in its admissions decisions in order to create a more diverse student body. Fisher v. University of Texas (2013).



20. The federal government cannot constitutionally deny federal marriage benefits to same-sex couples who are lawfully married under state law. United States v. Windsor (2013).



How many of these 20 decisions do you think reflect good policy for the nation? Do you agree with the Supreme Court that on such matters the People should not be permitted through their elected representatives to act contrary to these decisions? What do you think led you to think that some decisions were "good" while others were "bad? Can you discern any principle that leads you to judge some decisions as "good" and others as "bad"? Or is it just a matter of opinion? When all is said and done, has the Supreme Court's exercise of the power of judicial review been good or bad for the nation? Do we need the Supreme Court?

The National Review, Justice Sonia Sotomayor, and Affirmative Action

In a stunningly insulting editorial, the National Review attacked Supreme Court Justice Sonia Sotomayor for her opinion dissenting from the Supreme Court's recent decision upholding the constitutionality of a state's ban on affirmative action. The National Review decried Sotomayor's opinion as "Orwellian," as "legally illiterate and logically indefensible," and as "a case study in . . . moral and legal corrosion." It accused her of "elevating ethnic-identity politics over the law" and of being "a naked and bare-knuckled political activist with barely even a pretense of attending to the law," and it mocked her as a "self-described 'wise Latina.'"



Of course, the National Review has every right under the First Amendment to say all of these things, and I would defend to the death, in Voltaire's words, its right to say them. But that does not make them any less offensive -- or ignorant of the law.



What was the issue in Schuette v. Coalition to Defend Affirmative Action? In 2003, the Supreme Court, in Grutter v. Bollinger, held that the University of Michigan could constitutionally take race into account in its admissions policies in order to increase the diversity of its student body if it did so in a careful and precise manner. Thereafter, the state of Michigan enacted Proposal 2, which prohibited all public educational institutions in the state from using preferences based on race, gender, or national origin in their admissions policies.



The question in Schuette was whether Proposal 2 violated the Equal Protection Clause of the United States Constitution. The argument in defense of Proposal 2 was straightforward: Nothing in the Constitution requires a state to use affirmative action; therefore, the University of Michigan could constitutionally choose not to use affirmative action; therefore, the state of Michigan could constitutionally prohibit the University of Michigan from using affirmative action. That seems simple enough.



But in a series of decisions in the 1960s, 1970s, and 1980s, the Supreme Court held that when a state places special barriers in the way of racial minorities receiving equal treatment, it violates the Equal Protection Clause. To give a simple example, suppose a city enacts a law prohibiting private discrimination on the basis of race, religion, gender, or national origin. Now, suppose the state enacts a law prohibiting any city from prohibiting private discrimination on the basis of race. In effect, the state law allows cities to forbid private discrimination on the basis of religion, gender, and national origin, but not on the basis of race.



Although neither the city nor the state is under any constitutional obligation to have laws prohibiting private discrimination on the basis of race, the Supreme Court in those earlier decisions held that, by making it more difficult for racial minorities to obtain legal protection against private discrimination than other groups in society, the state law violated the Equal Protection Clause. That is, although Jews, Italian-Americans, and women had the freedom to persuade cities to pass ordinances protecting them against discrimination, African-Americans were denied the same freedom. For African-Americans to get a city to pass such an ordinance, they would first have to persuade the state itself to change its law. The Court in these earlier decisions held that this inequality violated the American Constitution.



Michigan's Proposal 2 created a similar situation. Before Proposal 2 was enacted, the University of Michigan was free to adopt affirmative actions programs in the admissions process for African-Americans, football players, violinists, the children of alumni, in-state residents, residents of rural communities, history majors, etc. After Proposal 2, the University of Michigan could adopt affirmative action programs for football players, violinists, the children of alumni, in-state residents, residents of rural communities, and history majors, but not for African-Americans.



Based on the earlier precedents, a pretty good case could be made for the conclusion that the issue in Schuette is properly controlled by the earlier decisions. That was essentially Justice Sotomayor's argument. Moreover, in a concurring opinion, Justices Antonin Scalia and Clarence Thomas agreed that the prior decisions controlled, which is why they argued that, in order to uphold the Michigan law, the earlier precedents should be overruled. In his plurality opinion, Justice Kennedy tried -- not very convincingly -- to distinguish the earlier decisions.



In short, Justice Sotomayor's opinion was in no way radical. To the contrary, it was a fairly straightforward application of the Court's traditional approach to this sort of issue. For the National Review to characterize it as "Orwellian," as "legally illiterate," as "logically indefensible," as "a case study in . . . moral and legal corrosion," and as elevating "ethnic-identity politics over the law," is nothing short of ignorant.



In fact, the specific legal issue posed in these cases is a difficult one. It has vexed the members of the Supreme Court for more than four decades now, and generations of justices have quite reasonably disagreed about how best to think about this problem. The only way the National Review can characterize this issue as simple and straightforward is by blinding itself to the legitimate complexites of a genuinely complicated legal question and simply assuming that it own political preferences must self-evidently be what the Constitution commands.

Politics, the Constitution and the Roberts Court

When I was a law student at the University of Chicago in the late 1960s, I had the great privilege as having Philip Kurland as one of my constitutional law professors. Kurland was one of the most distinguished constitutional scholars of his generation. He was also, by the standards of the day, quite conservative, and often a sharp critic of the Warren Court.



In 1970, Kurland published a much-heralded book, Politics, the Constitution and the Warren Court, in which he laid out his critique of the Supreme Court's work under the leadership of Earl Warren. A former law clerk to Justice Felix Frankfurter, Kurland echoed many of Frankfurter's views about the need for judicial restraint.



Frankfurter himself came to be suspicious of judicial "activism" in the early years of the 20th century when a clique of conservative Supreme Court justices took an aggressively "activist" approach to constitutional interpretation in a campaign to declare unconstitutional a broad range of progressive legislation -- including, for example, laws guaranteeing a minimum wage, establishing maximum working hours, prohibiting child labor and regulating the working conditions for women. The lesson Frankfurter drew from this era was that Supreme Court justices should be cautious in interpreting the Constitution, lest they fall victim to the temptation to impose their own personal values on the nation in the guise of interpreting the Constitution.



Kurland applied this lesson to the Warren Court, which he regarded as insufficiently respectful of the majoritarian political process. He concluded that the justices of the Warren Court were often too quick to reach results that they themselves thought to be good for the nation, whether or not these results were mandated by a proper understanding of the Constitution.



In short, Kurland, like Frankfurter, insisted that the proper stance of the Supreme Court should be one of judicial restraint and that, in interpreting vague and often open-ended constitutional provisions, the justices should err on the side of deferring to the elected branches of government.



Having recently re-read Politics, the Constitution and the Warren Court, I couldn't help but wonder what my old mentor would have thought of the work of the Roberts Court. After all, the Roberts Court is dominated by "conservative" rather than "liberal" justices, so Kurland would be pleased, right?



Wrong. My rather confident guess is that traditional conservative constitutional scholar like Philip Kurland would be appalled by the conduct of the current Court -- and most especially by the work of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. This is so for two reasons.



First, for critics of the Warren Court like Kurland, the proper stance of Supreme Court justices ordinarily should be one of judicial restraint. But the Roberts-Scalia-Thomas-Alito wing of the current Court is anything but restrained. To the contrary, these modern-day "conservatives" are often extremely activist in their interpretations of the Constitution. They are not in any way "conservatives" in the Kurland-Frankfurter mold.



In recent years, for example, these self-styled "conservatives" have voted consistently to hold unconstitutional laws regulating guns, laws regulating corporate campaign expenditures, laws regulating the size of campaign contributions, programs designed to promote the racial integration of public schools, affirmative action programs, key provisions of the Voting Rights Act, and (except for Chief Justice Roberts -- on a technicality) the Affordable Care Act, to offer just a few illustrations.



Each of these decisions was the product of an aggressive form of judicial activism that Phil Kurland surely would have condemned. Each overturned the judgments of the democratic process without any clear and compelling justification in constitutional text, history, theory, or precedent. Kurland would have found these decisions just as unwarranted as Felix Frankfurter found the Court's decisions invalidating progressive era legislation a century before.



Second, and here's the real kicker, Kurland would have been even more appalled by the unwillingness of these justices to invalidate laws they should have held unconstitutional -- but didn't. This is so because Kurland's commitment to judicial restraint was not universal.



The one critical "exception" to the principle of judicial restraint, Kurland explained, is when "the legislature imposes on... minorities in so fundamental a fashion as to necessitate invoking the safeguards of the Constitution." Indeed, the Supreme Court's "most important function," Kurland added, is "to frustrate the will of the majority" when the majority runs roughshod over "interests that would otherwise be unrepresented in the government." Despite what he saw as the Warren Court's failings, Kurland praised the justices of the Warren Court for accepting their core responsibility to protect "minorities against the tyranny of majorities."



In performing its role as the "guardian of interests that would otherwise be unrepresented," the Warren Court was particularly activist in interpreting the Constitution to ensure that it protected the rights of African Americans, political dissenters, religious minorities, persons accused of crime, and the right to vote. Although Kurland did not approve of all of these decisions, he understood and endorsed the constitutional understanding that drove them.



The "conservative" justices on the Roberts Court, however, are often passionately restrained in their interpretation of the Constitution in precisely the cases in which a more muscular form of judicial review is most appropriate -- those involving discrimination against African Americans, women, Hispanics, religious dissenters, gays and lesbians, persons accused of crime, and denial of the right to vote to minorities and the poor. In these cases, our contemporary "conservative" justices often err on the side of upholding laws that even Philip Kurland would have found unconstitutional.



This is, in my view, a sad state of affairs. There was once a principled understanding of judicial conservatism. That understanding no longer exists. Our conservative justices no longer believe in judicial restraint, and they no longer believe in the responsibility of justices -- liberal and conservative alike -- to protect "minorities against the tyranny of majorities."



If Phil Kurland were here today to write a new volume, Politics, the Constitution, and the Roberts Court, it would be, I am quite certain, scathing -- and with good reason.