The US Supreme Court issued two hot-button, long-awaited rulings today. The result in both cases was unanimous, but in both cases there was a sharp divide on the Court as to the reasoning, and as to how far the Court should go.
The first case has special relevance to Massachusetts. McCullen v. Coakley (yes, that’s Martha) was a challenge to Massachusetts’s fixed 35-foot buffer zone around abortion clinics, into which no protesters or “sidewalk counselors” are permitted. All nine Supreme Court Justices agreed that the 35-foot zone goes too far in terms of restricting the free speech rights of the protesters – and, according to the Court’s opinion, no other state has gone quite as far as Massachusetts (although apparently a few other localities have done so).
The lead opinion is by Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan (interestingly, the same lineup as we saw in the Obamacare decision). That opinion holds that the buffer zone law is not a “content-based” restriction on speech, which would have subjected it to the most exacting level of scrutiny, but then concludes that even under the lesser standard applicable to content neutral laws that restrict speech, the law failed. The Court seemed especially concerned with three points:
- the law expressly applies to public ways and public sidewalks, which are “traditional public fora” on which the government’s ability to restrict speech has generally been very limited;
- by looking at access laws from other states and the federal government, the Court inferred that there are lots of other, less restrictive ways of protecting clients at these clinics from harassment; and
- Massachusetts did not make an adequate case that all other options had been tried and had failed. This last point may be especially salient:
Respondents [Coakley et al.] have but one reply: “We have tried other approaches, but they do not work.” Respondents emphasize the history in Massachusetts of obstruction at abortion clinics, and the Commonwealth’s allegedly failed attempts to combat such obstruction with injunctions and individual prosecutions. They also point to the Commonwealth’s experience under the 2000 version of the Act, during which the police found it difficult to enforce the six foot no-approach zones given the “frenetic” activity in front of clinic entrances. According to respondents, this history shows that Massachusetts has tried less restrictive alternatives to the buffer zones, to no avail.
We cannot accept that contention. Although respondents claim that Massachusetts “tried other laws already on the books,” they identify not a single prosecution brought under those laws within at least the last 17 years. And while they also claim that the Commonwealth “tried injunctions,” ibid., the last injunctions they cite date to the 1990s. In short, the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor has it shown that it considered different methods that other jurisdictions have found effective.
At least on an initial read, it does not seem to me that this opinion slams the door on abortion clinic buffer zones. To the contrary, the Court several times referred with apparent approval to the 2000 version of MA’s own law, and to laws currently in effect in other jurisdictions. One easy initial step would seem to be to reenact the 2000 version of the law – it may not be perfect, but it’s better than nothing, and it would give law enforcement at least some tools to combat harassment. A longer-term solution should be to study the laws in jurisdictions specifically noted by the Court and see if they seem to be a better approach. This isn’t the end of the line, for sure. (The other four Justices, Kennedy, Scalia, Thomas, and Alito, would likely never uphold a buffer zone, but at least at the moment, there doesn’t appear to be a fifth vote for that position.)
Today’s other case, National Labor Relations Board v. Noel Canning, concerns the President’s power to make “recess appointments,” i.e., to put in office for a limited time appointees who otherwise would require Senate approval while the Senate is out of session. I haven’t read the case in detail yet, but the bottom line (as delivered by Justice Breyer, in an opinion joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan) appears to be this:
- the Senate is “in session” whenever it says it is, as long as it retains the ability to conduct business, even if it’s just a two-minute “pro forma” session, and
- a recess of less than 10 days between sessions is normally insufficient to allow for a recess appointment; however,
- recess appointments are permissible both for pre-existing vacancies and for vacancies that come into existence during a recess.
The result is that the President’s appointments to the NLRB that precipitated the case were invalid, because they occurred in a “recess” that was less than 10 days between pro forma sessions during which the Senate retained the ability to conduct Senate business. Four Justices (Scalia, writing for himself, Roberts, Thomas, and Alito) would have gone much further and drastically curtailed the recess appointment power, including by limiting it to vacancies that come into existence during a recess. But even under the majority opinion, the practical effect may be similar. Because either the House or the Senate apparently can force pro forma sessions (I don’t know the details of how that works, but several folks who know what they are talking about have said so), it would seem that if either chamber of Congress is under the control of the non-presidential party, the president’s recess appointment power can be stymied. It will be very interesting to see how this one plays out.