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June 26, 2014

Two Unanimous Supreme Court Decisions Beat Back Liberalism

So much for the supposed ideological division on the Supreme Court. Obama got slapped down on one of his abuses of power, and the free speech rights of pro-lifers were upheld in unanimous decisions .

The first had to do with recess appointments by Barack Obama -- and the decision was even written by one of the court's liberals!

In a unanimous decision, the Supreme Court on Thursday limited the president's power to make recess appointments for vacancies in the executive branch. The case, National Labor Relations Board v. Noel Canning et al., specifically related to three appointments Obama made in 2012 to the NLRB while the Senate was in pro forma sessions, convening every three days. As the Court sees it, for the Senate to truly be in recess, it would have to be out for at least 10 days.

The majority opinion in the case was written by Justice Stephen Breyer, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. A concurring opinion written by Antonin Scalia was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

The Court's summary states (emphasis ours) "The Recess Appointments Clause empowers the President to fill existing vacancy during any recess—intra-session or inter-session—of sufficient length." But the question here is whether the Senate was actually in recess. "A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President's recess-appointment power."

Frankly, I think that Breyer pegged things exactly right here, while Justice Scalia may have attempted to limit the recess appointment power too much based upon the historical precedents (though his reading of the text is certainly reasonable if one does not look at precedents going back to the founding era). But the key thing here is that no president has the right to simply declare the Senate to be in recess when he says it is and make appointments contrary to the clear meaning of the Constitution. This calls into question a great many Obama appointments.

And then there is the important free speech precedent, joined by even ardent abortion supporter Ruth Bader Ginsburg.

The Supreme Court on Thursday struck down a 35-foot protest-free zone outside abortion clinics in Massachusetts.

The justices were unanimous in ruling that extending a buffer zone 35 feet from clinic entrances violates the First Amendment rights of protesters.
Chief Justice John Roberts said authorities have less intrusive ways to deal with problems outside the clinics.

While the court was unanimous in the outcome, Roberts joined with the four liberal justices to strike down the buffer zone on narrow grounds. In a separate opinion, Justice Antonin Scalia criticized Roberts' opinion for carrying forward "this court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents."

The case began when Boston-area grandmother Eleanor McCullen and other abortion opponents sued over the limits on their activities at Planned Parenthood health centers in Boston, Springfield and Worcester. At the latter two sites, the protesters say they have little chance of reaching patients arriving by car because they must stay 35 feet from the entrance to those buildings' parking lots.

Consider the reality of the law in question. Under it, if two people walking on the sidewalk were discussing abortion, one could legally say he supported abortion while his companion could be arrested for responding that she believed it to be murder. A Planned Parenthood volunteer could wear a t-shirt supporting abortion while a person wearing a "Precious Feet" lapel pin while passing the building would be subject to criminal charges. One would even be subject to criminal charges for parking a car with the wrong bumper sticker too close to the building! And while I agree with Justice Scalia's view that the court failed to reckon with the double standard that exists in restricting only one side of the abortion debate, I think that this decision will be a building block for future challenges to such restrictions on speech on the issue.

By the way -- these decisions today are part of a string of unanimous decisions this year. Indeed, over half of all decisions have been made 9-0.





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