June 26, 2014

Massachusetts law imposing a 35-foot buffer zone around abortion clinic violates the First Amendment, a unanimous Supreme Court says today.

Chief Justice Roberts writes the main opinion, and there's a Scalia concurrence, joined by Kennedy and Thomas, and an Alito concurrence. 

I'm just reading the live blog at SCOTUSblog, so I don't have more than that yet. I also see that the Court decided the case about recess appointments, and:
The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.
This means that some appointments to the NLRB were invalid, and: "That means that their rulings were invalid. It is unclear what will happen with other NLRB rulings from that period."

37 comments:

The Drill SGT said...

5 Catholics in the majority. That will set the left off even though the issue itself (free speech) would naturally get their votes anyway.

PS: On the NRLB, doesn't that invalidate all decisions (if challenged) of the board when dependent on the illegal appointees for a quorum?

Rumpletweezer said...

What the hell is going on with the Supremes? They're making sensible, unanimous decisions. Have aliens taken them over?

campy said...

"...the issue itself (free speech) would naturally get [the left's] votes anyway."

Paging Mr. Van Winkle. Mr. Rip Van Winkle ...

Justin said...

@Rumpletweezer

That's what Chief Justice Roberts wants you to think. But both cases today were really 5-4 -- the 4 agreed with the majority about the ultimate result, but disagreed entirely with the reasoning employed by the majority to get there.

These decision I think confirm the rumors that Roberts and Kagan have embarked on a campaign of "consensus building"; the surprising thing here is Roberts' willingness to place compromise over principles. Scalia will have none of it. From his concurrence in the judgment in the buffer zone case: "I prefer not to take part in the assembling of an apparent but specious unanimity."

What I am seeing, and I think it is failry obvious when you look at voting breakdowns, is an ostracization of Scalia and Thomas, and to an extent also Alito, by the other six members of the Court. I suspect those threes' distemper will only grow in years to come.

Mark said...

I wonder about the protest zones at political conventions, Capitol rotundas, etc now. Seems like this isn't limited to abortion protestors.

Drago said...

Who cares what the supreme court says?

Liberal enclaves will still enforce the buffer zones because that's what they want to do and so they will do it.

There the anti-abortion protestors stand with their supreme court rulings.

Over there the lefties stand with their disregard for the laws along with the force of local authorities.

We shall see which ones prevail.

Pssst: It won't be the abortion protestors.

holdfast said...

@Rumpletweezer Some things are so obvious, that they all pretty much have to agree. Also, even those justices who are very partisan can take a long view, and unlike Obama and Harry Reid they know that at some point the other party will be in power.

Original Mike said...

"So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked."

Future presidents of both parties will curse President Lawless.

Thorley Winston said...

Am I reading that excerpt correctly that the House of Representatives can take the Senate out of session? I thought each of the two Houses of Congress could decide when they were individually in session and was not aware that one had the power to decide for the other.

Matthew Sablan said...

I don't think the decisions even have to be challenged. They were illegal decisions; overturned de facto, I'd say.

Anonymous said...

That NRLB decisions is pretty freaking awesome decision.

It basically tosses out a lot of the decisions made since Obama decided he can pick and choose when the Senate is in session.

A pretty solid win for the separation of powers.

Marty Keller said...

Oops. A little disruption of the "I-can-govern-as-a-dictator-'cause-I'm-obviously-right" strategy? Gosh.

Chuck said...

So how about the 9-0 ruling on the NLRB recess appointments? Does a House lawsuit against Obama for overstepping his powers still seem so silly? (Admittedly, the plaintiff in the NLRB case was a private party, a bottler who was aggrieved by an unfavorable NLRB ruling. So the standing issues may be altogether different.)

campy said...

I hope someday the Court strikes down university policies restricting free speech to tiny, little-used areas of campuses.

n.n said...

They're plucking the stork's feathers. I wonder if this change reflects a better understanding of human evolution. Well, baby steps.

Michael Fitzgerald said...

Can't wait for all the progressive whiners to praise these unanimous court opinions. C'mon democrat party members, here are the consensus decisions you've all been demanding.

gerry said...

That makes THIRTEEN unanimous decisions against the Obama administration by the USSC.

Woof.

Saint Croix said...

Obama administration has been rebuffed a dozen times in unanimous opinions. Wow.

Original Mike said...

"That makes THIRTEEN unanimous decisions against the Obama administration by the USSC."

Don't they know Obama is a Constitutional Law Instructor?

Brando said...

The NLRB decision is one everyone should applaud even if they are Obama fans--do you really want future presidents to have an easy way to circumvent Congress to get your people appointed? The excuse of "Congress is obstructive!" is useless whining--presidents can use public pressure, and these checks on the system are important in keeping us from going all banana republic. Democrats would be (and have been) pretty furious if a Republican packed the NLRB (or other agency boards) with their people using recess appointments to steamroll their policies through.

As for the Mass. case, I don't see what's so hard for the restrictionists to understand--any limit on free speech has to be narrowly tailored. Protesters still are not allowed to block anyone from getting into a clinic, and harassment and violence are still prohibited. Can't stand protesters being close enough to show you disturbing photos? Sorry, but the First Amendment has to trump your sensibilities.

Bill said...

Thorley Winston said... "Am I reading that excerpt correctly that the House of Representatives can take the Senate out of session? I thought each of the two Houses of Congress could decide when they were individually in session and was not aware that one had the power to decide for the other."

From Article 1: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, ..."

So I don't think one house can force the other to reconvene from a recess, but it can force the other not to recess in the first place, which is what happened.

Doug said...

Unanimous decision! And feminazi heads begin to explode in 3 ... 2 ... 1 ....

Doug said...

Don't they know Obama is a Constitutional Law Instructor?
I'm guessing he got the Con Law Instructor job based on the same level of qualifications with which he got the POTUS; that is, beyond melatonin ... not much.

MountainMan said...

@Thorley Winston:

"5.4 Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

So, each house of Congress has to consent to the other's adjournment if for a period longer than 3 days. So if the House does not pass a resolution supporting the Senate's adjournment, it can't adjourn, and vice versa.

Renee said...

My pro choice friends proclaim that they should protest crisis pregnancy centers.

Drago said...

campy: "I hope someday the Court strikes down university policies restricting free speech to tiny, little-used areas of campuses."

I hope someday the Court strikes down university policies restricting CONSERVATIVE speech to tiny, little-used areas of campuses AND university administrators of universities gleefully, happily, allowing heckler vetoes of conservative speech on campuses.

Even if the conservatives are "icky".

Moose said...

Abortion needs to be kept legal. No where in Roe V. Wade was it stated that it should make the mother feel good about what she's about to do.

Norman Conquest said...

Americans' "free speech zone" has clearly established boundaries: Yhe borders of the United States of America.

Richard Fagin said...

...from the state that keeps Martha Coakley as its Attorney General.....couldn't happen to a nicer bunch of people. They were merely liberal in 1972 as the only state to choose McGovern. Now they're out and out Stalinists. This is the state that has armed police officers walking the beach checking people's coolers for alcohol. Hint: it wasn't Wisconsin that sued the EPA to regulate carbon dioxide as a pollutant.

ALP said...

RE: the 35 foot barrier rule decision.

I wonder - how noisy and disruptive can protesting be before its deemed a violation of noise ordinances, disruptive to those working within earshot, and so loud and consistent it interferes with one's concentration on the job? Anybody know? I was hoping to glean something from this opinion...maybe I don't know enough about this type of case to spot it?

Years ago when I was working in a law firm in Seattle's Pioneer Square, there was a weeks-long protest by a labor union related to the construction industry taking place across the street from our building, on the sidewalk. Incessant screaming, beating on solid objects in a drum-like manner, in addition to blowing on the type of whistle used by your typical football coach. Very noisy - for about 30-40 hours a week.

The buildings in that part of Seattle can be quite old - ancient enough to have poor HVAC, but thankfully the windows could open. That summer was pretty hot...windows open all day...and hours of protest noise to endure, to try and block out so one could think (earplugs didn't really do the trick and then you couldn't hear your phone ring). Days of this dragged into weeks. Once in a while, some office worker in a nearby building would lose it, and start screaming at them out the window - adding yet more noise. By week 3 those of us situated near windows had listened to this for 75+ hours could barely contain the venom we had for these people. It began to feel like mental torture - I even contemplated using all my vacation time to get some relief. The "speech" coming from this protest was indistinguishable from what you'd hear on a crowded playground.

I am sure folks working in Madison's state house during the Walker protests a few years back can relate. All that experience did was make me hate people who protest even more than I already did.

So - at what point is "speech" just obnoxious noise? I would think to qualify as speech, there would have to be some kind of recognizable message being relayed. What kind of message is being relayed by an individual blowing through a whistle every 3 seconds? Do I have the right to interpret that speech as "Please kick me several times in my scrotum?"

SGT Ted said...

My pro choice friends proclaim that they should protest crisis pregnancy centers.

Sounds like your friend isn't really "pro-choice", is she?

Did you ask her why she calls herself "pro-choice" if she is for protesting the choices of women to not abort their babies by going to a crisis pregnancy center?

n.n said...

SGT Ted:

Their use of "choice" is a euphemism for abortion/murder (for money, sex, ego, or convenience). While they will not force a women to abort/murder her child, they believe it is a woman's right to commit abortion/murder without biological, social, or legal consequences. Whether by choice or force, they circumvent the natural and social mechanisms which mitigate devaluation of human life.

I wonder how many pro-choice/abortion women and men are also pro-immigrant. I wonder how many advocates for population control through abortion/murder are also pro-immigrant.

Renee said...

@SGT,

She is anti -gun because of all the school shootings.

Guns kill children, abortion doesn't in her view..

I would say something. But I know it would not affect her, she would just donate to PP as a response.

Anonymous said...

Would be wonderful if the courts insisted on trying related "ends" from various "means" from the Left and Right, together. e.g. in tandem with setting the protest rules for clinics, set the margins for union workplace actions by (more and more often paid) protesters - which currently includes disrupting, and at times shutting down, the workplace, damaging equipment and vehicles, and the occasional turning of a blind eye to assaults, even those causing serious injury.

Hmm. And the ability to hire paid protesters seems to be right up there with the Citizens United argument. Meaning Citizens United was just leveling the 1st amendment field (wonder how many right-to-life protesters are there because they were hired? probably none.)

Doug said...

What the hell is with these SCOTUS libs, they couldn't find a penumbra or an emanation or a whatchacallit? Rookies!

Owen said...

How many "decisions" were made by the group of people calling itself the NLRB, during the period of the now-invalidated recess appointments? How many person-years of effort, how many irrevocable investments or changes,and how many millions of dollars have been spent in reliance on or compliance with those "decisions"? How much more will be spent in re-litigating each case, or litigating whether it can or must be re-litigated? Will these "decisions" retain power as precedent? Will they be expunged from the official record of NLRB proceedings, or marked with an asterisk?

The President won't apologize. Should he? Or is this just the inevitable collateral damage of "our robust system at work"?

Unknown said...

What bothers me is how we as a nation got to the point where someone THOUGHT this kind of barrier to free speech wasn't. I think it's because of the prima facie nonsensical and inconsistent rulings spreading from the courts like cow pies in a meadow on a hot day. I expect (hope) that as more "obvious" rulings come out, people will stop pushing the envelope.