Tie Goes to Freedom

Not a Free Speech Court

Reconsidering Substantive Canons

Constitutional scholars Christopher P. Banks and John C. Blakeman offer the most current and the first book-length study of the U.S. Supreme Court’s “new federalism” begun by the Rehnquist Court and now flourishing under Chief Justice John Roberts. Using descriptive and empirical methods in political science and legal scholarship, and informed by diverse approaches to judicial ideology, from historical to new institutionalist, they investigate how the U.S. Supreme Court rulings have shaped the political principle of federalism. While the Rehnquist Court reinvorgorated new federalism by protecting state sovereignty and set new constitutional limits on federal power, Banks and Blakeman show that in the Roberts Court new federalism continues to evolve in a docket increasingly attentive to statutory construction, preemption, and business litigation. In addition, they analyze areas of federalism not normally studied by scholars such as religious liberty and foreign affairs.

The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story behind Abrams v. United States THOMAS HEALY More than any other single person, Oliver Wendell Holmes, Jr., is responsible for the position that freedom of speech occupies in American society today. His landmark First Amendment opinions have not only shaped free speech doctrine and theory, they have worked their way into our collective consciousness, becoming part of our language, our view ofthe world, and our identity as a nation. Yet, strangely, Holmes was not always a staunch defender of free speech. Prior to writing his 1919 dissent in Abrams v. United States, he had done as much as any judge to render the First Amendment toothless. In one of the first Supreme Court cases to address the topic, he had embraced the cramped Blackstonian view that freedom of speech prohibits only prior restraints but places no limits on the government’s power to punish speakers after the fact.1 In another case, he had upheld the conviction of a small-time anarchist for inciting nude sunbathing.2 And just eight months before his famous dissent in Abrams, Holmes had written three opinions for the Court upholding convic­ tions of socialists and pacifists who had criticized American involvement in World War I.3 It wasn’t that Holmes had a particular dislike offree speech. What irked him was the notion of individual rights in general, the idea that there are limits on what a democratic majority can do. “Every society rests on the death of men,” he liked to say.4 If a nation needs soldiers, it seizes young men and marches them off to war at the point of a bayonet.5 If an epidemic breaks out, it forces the public to get vaccinated. The same is true, Holmes thought, even when there is no emergency. If the majority wants to limit the workday of bakers to ten hours, it should be permitted to do so, regardless of whether that decision is misguided or conflicts with 36 JOURNAL OF SUPREME COURT HISTORY The Espionage Act of 1917 and Sedition Act of 1918 outlawed the use of “disloyal, profane, scurrilous, or abusive language” about the government during World War I. In 1922, children of fathers who were political dissidents pleaded for their release. some ideal of freedom.6 And he, as a judge, had no business standing in the way. “If my fellow citizens want to go to Hell 1 will help them,” was another favorite saying. “It’s my job.”7 In short, Holmes was in many ways the Justice least likely to stick his neck out for the right of free speech—and for the Court’s role in enforcing that right. So why did he do it? Why did a man who sneered at liberal sentimentality his whole life write one of the canonical statements of American liberal­ ism, an opinion that has been compared to the speeches of Lincoln and the essays of Milton?8 That question is one of the great legal and intellectual mysteries of the twenti­ eth century. And the answer is a fascinating story of chance encounters, intellectual ex­ ploration, and personal relationships. But in order to appreciate how remarkable that story is, we first need to understand just how radically Holmes’ position on free speech shifted from his early years as a state court judge to his later years on the Supreme Court.9 Free Speech Skeptic The evidence of Holmes’ insensitivity to free speech begins during his tenure on the Massachusetts Supreme Judicial Court from 1882 to 1902. Although the First Amendment did not apply to the states at the time, Holmes decided a handful of cases raising issues of free speech. For the most part, these cases fell into two categories. The first consisted oflibel suits in which the defendants asserted a common law privilege in an effort to avoid liability. In Cow/ey v. Pulsifer, a newspaper argued that its statements about the plaintiff were protected because they had been taken from a petition filed in court.10 And in Burt v. Advertiser Newspaper Co., a newspaper claimed it could not be held liable for false...

In The Rehnquist Court and the Constitution, Tinsley Yarbrough provides a comprehensive look at today's Supreme Court Justices and their record-a study all the more valuable for the Court's mixed decisions and hard-to-categorize course. An accomplished biographer, Yarbrough offers incisive portraits of the nine who now sit on the high bench, and tellingly reviews their nomination hearings. He also explores the workings of the Court, ranging from the selection and role of the clerks to the work load (including the end-of-term June crunch) and assignment of opinions. But the heart of the book is a systematic exploration of the Court's record in such fields as government power, economic regulation, and criminal justice. In decision after decision, the author discusses the various justices' opinions, arguments, and legal theories; he also offers his own analysis (including a sharp critique of the decision to allow the Paula Jones lawsuit to move forward). Like many writers on the Rehnquist Court, Yarbrough finds a general continuity with the past, shaded by a conservative outlook (especially in matters of criminal justice and affirmative action), but he identifies a significant departure in its rulings on economic regulation. Since 1937, he writes, the Supreme Court had generally adopted an expansive view of federal power over economic matters; the Rehnquist Court has reversed that trend. The Rehnquist Court has not launched an all-out assault on the Warren Court's precedents, as many conservatives hoped, but as Yarbrough shows it has embarked on important new departures. Thoughtful, wide-ranging, intelligently written, this book will stand as the finest study of the Rehnquist Court for years to come.

So far this book has shown that the widespread belief in the Supreme Court's independence can give rise to misleading expectations about its jurisprudence, especially when the justices's preferences diverge from those of majorities in the House of Representatives. Post 2004, professional commentators expected the Rehnquist Court's successor, the Court led by Chief Justice John Roberts, to move even further to the right than it had moved before. But close observers of the Roberts Court were repeatedly struck by its apparent moderation in many important cases in its first four full terms, those occurring between 2006 and 2010. This chapter looks at the Roberts Court and analyses what has happened so far. It remains to be seen whether, under the condition of continued Republican domination of the House of Representatives, the Roberts Court will continue its more aggressively conservative jurisprudence.

Progressive Political Theory and Separation of Powers Law on the Burger and Rehnquist Courts

The Constitutional Structure and the Jurisprudence of Justice Scalia

Insult to Injury: Libel, Slander, and Invasions of Privacy, by William K. Jones (University Press of Colorado, 2003) 376 pages, $45Last March marked the 40th anniversary of New York Times Co. v. Sullivan, the landmark case in which the U.S. Supreme Court held that a public official cannot recover damages for a defamatory falsehood about his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.Thus, the Sullivan rule-for the first time in American history-subjected defamation (libel and slander) law to First Amendment limitations. And it reflects the Supreme Court's awareness of the self-censorship that would-be critics, including the news media, are likely to face in engaging in their robust, uninhibited, and wide-open debates on the government and public officials.In Insult to Injun/, William K. Jones, professor emeritus of law at Columbia University, notes that the Sullivan decision was revolutionary because it dramatically altered the law of defamation. Criticism of the government and public officials is now a matter of constitutional privilege for Americans.Jones undertakes to examine defamation and related expressive transgressions such as invasion of privacy and intentional infliction of emotional distress. The book is divided into six parts. Its first four relate to and common law on press freedom and defamation. Part 5 centers on intrusions and public disclosures of embarrassing facts. While Part 6 purportedly concludes the book, its two chapters probe the fact-fiction relations and the Internet law.Although he discusses the U.S. Supreme Court's rulings, Jones pays close attention to lower courts' application of the Supreme Court's guidelines on the balancing of freedom of expression with individual reputation. This is a refreshing departure from the often-unwarranted fascination of legal scholars with the Supreme Court's free speech jurisprudence. As Judge A. Richard Posner of the 7th U.S. Circuit Court observed recently, the Supreme Court decisions receive disproportionate attention as compared with those of other appellate courts.Jones considers the current libel law a losing game. And his book is a measured effort on his part to make the unsatisfactory, complex law more manageable. But he is no advocate of the wholesale revision of substantive principles. Instead, he prefers procedural reform. Jones' three-stage proposal aims to make libel lawsuits expeditious and largely cost-free while vindicating plaintiffs' reputations if their claims are merited.Retraction or corrections to libel victims are first recommended as a moneysaving means to clear their names. If this pre-litigation approach does not work, Jones suggests that it move to the initial phase of the litigation. The first phase of the libel litigation revolves around the issue of falsity, not around whether the defendant was at fault. Under Jones' formula, the second phase of the libel litigation kicks in where falsity is particularly complicated. Here, the plaintiff must prove falsity and the requisite degree of fault (actual malice or negligence) as well. …

Federalism as Docket Control

The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures

The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments. First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement. Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a First Amendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940. Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Reviving Tocqueville's America: The Supreme Court's New Jurisprudence of Social Discovery

William Rehnquist's tenure as Chief Justice of the US Supreme Court (1986-2005) brought a new approach to constitutional precedent and its reversal. While prior to the Rehnquist Court the reasons for constitutional precedent were done on an ad hoc or one-by-one basis, the Court in Payne v. Tennessee began to articulate a theory of precedent reversal. During the Rehnquist Court various decisions on race, abortion, and criminal due process began to articulate and develop a theory of constitutional precedent reversal and explicitly describe and employ it in its decision making.

Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis