Disagreeing to Agree on Recess Appointments and Buffer Zones

by Michael Dorf

The Supreme Court "unanimously" decided two cases today. In NLRB v. Noel Canning, the Court invalidated President Obama's use of the recess appointment power while the Senate was in pro forma session. In McCullen v. Coakley, the Court invalidated the Massachusetts 35-foot buffer zone around entrances to facilities (other than hospitals) where abortions are performed.

I put "unanimously" in quotation marks above because each case produced a 5-4 split with a heated concurrence in the judgment that read more like a dissent. Thus, in both cases, the majority consisted of the four liberals plus one of the two slightly less conservative conservatives. In Noel Canning, Justice Kennedy joined the majority opinion of Justice Breyer and in McCullen, CJ Roberts reprised his role from the 2012 Health Care Case, writing a majority opinion joined by the liberals. (In McCullen, Justice Alito wrote his own concurrence in the judgment rather than joining Justice Scalia's. Although Justice Alito's tone was less incendiary than Justice Scalia's, his grounds for disagreeing with the majority were largely the same.)

I'll have more to say about Noel Canning in my Verdict column next week. Here I want to make a brief observation about the lineups in these cases and then add two thoughts about the possible implications of McCullen.

1) Lineup:  There was much speculation in 2012 about whether CJ Roberts voted as he did in the Health Care Case for political/pragmatic reasons. That speculation tended to overshadow what should have been at least as much of a puzzle: Why did two of the liberals (Justices Breyer and Kagan) join the conservatives in striking down the Medicaid expansion as a coercive use of the Spending Power? The obvious answer for conspiracy theorists was this: Breyer and Kagan made a deal with Roberts; they would vote to invalidate the Medicaid expansion in exchange for his vote to sustain the individual mandate under the Taxing Power, which would give him something valuable while also preserving the Court's institutional legitimacy as non-political.

I don't think much of the conspiracy theory. My observations both as a law clerk a long time ago and as a Court watcher ever since lead me to think that Justices do not explicitly trade votes, nor do they even permit themselves to believe that they are implicitly trading votes. Having said that, however, I do think that there is strategic voting on the Supreme Court, which is perhaps best explained by subconscious mechanisms.

In any event, for the moment let's run with a political model. The idea would be that one or more of the liberals would have preferred to uphold the Massachusetts law in McCullen, but realizing that they didn't have the votes for that, they made a deal with CJ Roberts: He would get a unanimous decision invalidating the buffer zone and they would get a ruling that left states and localities with some flexibility to erect buffer zones in future cases. Likewise, in Noel Canning, we might assume that one or more of the liberals would have liked to uphold the President's use of the recess appointment power, but realizing that they lacked the votes for that, they made a deal with Justice Kennedy: He would get a unanimous decision invalidating these particular recess appointments and they would save the recess appointment power for future cases.

Even putting aside my enormous skepticism about the possibility of such deals, I find the argument for a deal in Noel Canning even less plausible than the argument for one in McCullen. While the Chief Justice has some interest in unanimity, it's hard to see that Justice Kennedy does. And even in McCullen, the unanimity that the Chief got was pretty hollow, with Justice Scalia going after him hammer and tongs. So I'm left thinking--in both cases--that the lineups simply reflect the Justices' respective views.

2) Implications of McCullen

a) The fundamental disagreement between the majority and the concurrences in the judgment concerned the question of whether the Massachusetts law was "content-neutral." Because it regulates speech on sidewalks--a "traditional public forum"--the precedents require that it must be content-neutral to be valid. The majority says the law is content-neutral because on its face it is not directed at speech and it addresses speech-neutral concerns--namely, "public safety, patient access to healthcare, and the unob­structed use of public sidewalks and roadways." The concurences in the judgment say that the law is both content-based (because it singles out facilities that perform abortions and thus abortion-related speech) and viewpoint-based (because various exceptions for facility employees, including "escorts", mean that within the buffer zone patients can be told to enter the facility and have the abortion but not to change their minds and forgo the abortion).

Despite finding that the law is content-neutral, the majority nonetheless invalidates it on the ground that it is not "narrowly tailored," a further requirement for a law that regulates speech in a public forum. Although the concurrence pooh-poohs this portion of the majority opinion as easily evaded, to my mind, this is a potentially far-reaching doctrinal development. Prior to McCullen, the narrow tailoring prong of the test for evaluating content-neutral time, place and manner restrictions of speech in a public forum used the language of narrow tailoring but applied that test in a very deferential way. The McCullen majority notes that distinction as follows:
Such a [content-neutral] regulation, unlike a content-based restriction of speech, need not be the least restrictive or least intrusive means of serving the government’s interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. [Internal quotation marks and citations omitted].
Thus, the version of "narrow tailoring" applicable to content-neutral time, place and manner regulations of speech has traditionally looked a lot like what is sometimes called "intermediate scrutiny." But as I noted quite a few years ago, even that is an overstatement. Although lower courts have sometimes applied this version of narrow tailoring to invalidate content-neutral laws, the Supreme Court itself rarely does so. To the extent that McCullen signals a more robust version of the narrow tailoring requirement for content-neutral time, place and manner restrictions, that may be a significant development in the Court's free speech jurisprudence.

b) Meanwhile, I confess that I am of two minds regarding the majority's conclusion that the law should be regarded as content-neutral, for reasons that track the arguments set forth by Justice Scalia in his concurrence in the judgment. In our forthcoming book, tentatively titled Beating Hearts: Abortion and Animal Rights, Professor Colb and I explain that we do not think that people generally have a right to remain ignorant of the consequences of their actions. We make the point with respect to both abortion and animal rights in a chapter that considers the use of visual imagery in the pro-life and animal rights movements. Of course, there is a point where attempts to inform people who clearly do not want to be informed become harassment, and so there must be limits, but one should not assume that every effort to shield people from information is an effort to protect their safety.

I do not read either the majority or the concurrence in the judgment in McCullen as disagreeing that the right line distinguishes between shielding people from information (impermissible) and shielding them from harassment, assault, etc. (permissible). The disagreement on the Court appears to be over the question of how closely to scrutinize the state's assertion of a speech-neutral reason. The majority accepts that the Massachusetts legislature was motivated by concerns about congestion, ingress and egress, and safety, whereas the concurrence in the judgment contends that these were not the real motives of the legislature; shielding women seeking abortions from anti-abortion messages was the real motive, Justice Scalia claims.

In addition to wondering whether the majority too readily accepted the state's assertion of content-neutral grounds for the particular Massachusetts law, I worry a bit about the application of a too-deferential approach in other contexts. In particular, various state legislatures have enacted or proposed "ag-gag" laws that forbid various forms of documenting what happens to animals on farms. The actual purpose of these laws is to prevent animal rights and animal welfare activists from exposing how animals are treated but the laws could potentially be justified by generic references to safety, privacy, and property. Under the majority approach in McCullen it is possible that such laws would be deemed content-neutral because of these generic invocations, despite their implausibility as an actual account of the legislators' purpose.

Ultimately, however, it may not much matter (in the context of abortion, animal exploitation, and other areas) that McCullen affords substantial deference to state assertions of content-neutral interests if, as suggested by the narrow tailoring analysis in McCullen, the Court follows through by demanding a reasonably tight fit between those asserted interests and the actual operation of the law. Honestly applied, that analysis would invalidate ag-gag laws.


Okay, that's all for now.  As this is my second post today, there will be no new post tomorrow. Next week, there will be a new post early Monday morning, probably followed by a mid-day post on Hobby Lobby.