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Friday, March 04, 2011

Chief Justice Roberts and the Ostensibly Boring First Amendment

A propos of this week's decision in Snyder v. Phelps, Steve Shiffrin has an interesting post on the Mirror of Justice blog arguing that Chief Justice Roberts's opinion in that case lacks integrity, because it fails to acknowledge the extent to which the case raised new and/or difficult issues and pretends instead that "nothing new under the sun is contained in the opinion."  He writes that Roberts's opinion fails to "accurately state what is at stake in the case[ ] presented" and does not "face up to hard issues when they are presented instead of glossing past them."

This is strong language -- perhaps too strong.  Like Roberts, I thought this was a relatively easy case.  No one in the business, of course, was surprised by the outcome.  But I agree with Shiffrin that it appears to be characteristic of Roberts's writing in the First Amendment area, if not elsewhere (he has certainly been accused of similar behavior in other constitutional fields), that he makes an overriding virtue of simplicity, to the relative exclusion of other virtues, such as facing up to the potential complexity of a case.  His approach has the seeming benefit of offering clarity and guidance to lower courts and citizens.  But superficial clarity sometimes comes at the expense of genuine guidance.  It may be that Roberts's First Amendment opinions at times provide only the appearance of clarity, while brushing aside many difficult issues that will still have to be resolved by other courts and litigants.

Shiffrin's complaint on this score reminds me of another comment about a similarly lopsided opinion.  A few years ago, Jack Balkin wrote about Roberts's opinion in Rumsfeld v. FAIR that Roberts "makes the result look easy, and he makes it look easy by artfully dodging every interesting constitutional law question in sight."  Others said similar things about the opinion at the time.  Like Snyder, the result in Rumsfeld was easily anticipated by everyone.  And perhaps like Snyder, Rumsfeld emphasized everything that was intuitively easy about the case to the exclusion of everything that was, given the actual theory and doctrine of the First Amendment, more complex and difficult.  One might say the same thing about Roberts's recent opinion in the Stevens case, another relatively easy First Amendment case in which Roberts even more explicitly makes new law while treating the case as wholly preordained by prior law.  

Perhaps Lyrissa, who spoke about the Roberts Court and the First Amendment at the AALS conference, will weigh in with her thoughts.  But this does seem to me to be the general tendency of the Roberts Court, and Roberts himself, on the First Amendment: a kind of complacent, easy-going (if sometimes brusque) formalism and doctrinalism that avoids balancing, but also avoids any deeper confrontation with the complexities and contradictions that are a seemingly unavoidable part of current First Amendment doctrine given everything the Court has said in this area.  (Contrast this with Justice Breyer, whose First Amendment writing is all about balancing, and who focuses on heightening a sense of the conflicts in First Amendment law while then seemingly consulting his inner muse to say which side of the conflict should win; and contrast this too with Justice Alito, whose opinions in this area seem as formalist and impatient as Roberts's but, as in Snyder, sometimes come out on the opposite side.)  

In a sense, Roberts promises to offer greater clarity and simplicity to First Amendment doctrine by cutting to the quick and hewing to the essentials, without mucking about in the underbrush.  But it may be only a seeming clarity and simplicity.  The underbrush is still there.  If he is unwilling to do the work of clearing it out openly, he may leave us with a sense of false confidence and a failure to do the hard work of reconciling and rationalizing First Amendment law.  

Shiffrin detects an air of the advocate in Roberts's opinion in Snyder, and although I agree with Roberts's opinion I can see why.  His opinions may reach the right results, and he may be right to think of these as easy cases.  But he is not content simply to say that these cases are easy, while acknowledging the nagging difficulties around the edges; nothing less will do than to treat them as the easiest cases imaginable, even when that's not so.  The Roberts Court seems intent on giving us a boring First Amendment.  But it is cleaning up the First Amendment much the same way I clean up my bedroom: by putting all the messes in the closet.  Open up the door a crack, and the debris will spill out.      

Posted by Paul Horwitz on March 4, 2011 at 09:30 AM in Constitutional thoughts, Paul Horwitz | Permalink


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This is a great post and great discussion. I've only read through the opinion a couple of times because it came out just as I was trying to finish an article and leave to teach in Poland for two weeks, but I, for one, was amazed that Roberts didn't address the case by focusing on the extension of Falwell's logic to cases involving private figures. The rationale for protecting non-factual hyperbole/opinion is the same whether public figures or private figures are involved, and I probably would have based the entire analysis around that. Also, shouldn't more have been said about the captive audience problem? On another note, I will be very glad if Justices start writing shorter, more succinct opinions, even if some nuance must be sacrificed in the process. Lawyers and judges actually have to use Supreme Court opinions to try to figure out what the law is, and it makes it very difficult to do that when each opinion is 200 pages long.

Posted by: lidsky | Mar 7, 2011 6:07:37 PM

One additional thought which follows a little from the previous comments and I hope may provide more grist for Paul:

There is a difference between the practice of judicial opinion writing and the actual bases of decisionmaking. It might be that we want those two features of an opinion to be quite different, because an elegantly written, rhetorically attractive decision is actually more persuasive than a more complicated, more plodding, but also more thorough decision. An opinion in the former style might in the end serve goals like the Court's political legitimacy more effectively than one in the latter, or it might serve to rope in more Justices to sign on to one's opinion, giving the decision greater power, or it might serve some other goals.

Or, we might instead say that we want the practice of judicial opinion writing to track very closely what the actual bases of decisionmaking are. That might be because we want to be able to take what the Justices say at face value -- really to have their minds on the page in full. That also might serve the goals of legitimacy, though in a different way and at a different level of interest.

Posted by: Marc DeGirolami | Mar 5, 2011 11:03:28 AM

He was more personal; "Roberts" lacked integrity. Well, if so, ditto those (except maybe Breyer) who concurred. And, as stated by someone else, this sort of thing is not unique to Roberts. In fact, some criticized (or praised) Brennan for his repeated "crafty" opinions that were "activist" in scope (not saying this is wrong) but pretended to be simplier than they were. Many rulings probably can be said to be like that. Citing this opinion as special in this regard seems misguided without more evidence.

Posted by: Joe | Mar 5, 2011 9:37:32 AM

Along the same lines, what is wrong with treating an easy case (in the sense of seeming to follow from existing principles and doctrine) as easy? And is Roberts any more guilty of this than other Justices? Did Roberts make this case sound any "easier" than Rehnquist did in Falwell or than Brennan did in Texas v. Johnson? (I have to re-read both to know for sure--it might be an interesting thing to look at).

Shiffrin's objection seems to be that the decision was either wrong or at least difficult. But if Roberts disagreed, why not write opinion as he did? Plus, I think you're right that Alito treated this (and Stevens) as just as simple as Roberts did--but coming out the opposite way.

Posted by: Howard Wasserman | Mar 4, 2011 3:56:15 PM

Paul, subtle and interesting post, as usual. But are you really saying that the case may not have been as easy as you claim that it was? I guess I am wondering if you can explain more the difference between treating a case as easy when it is easy, and treating it as *really* easy when it is easy. Doesn't the thrust of your argument work better if the case actually is not as easy as is commonly supposed? The clutter in your room would be more noticeable, for one, and I know you've got interesting odds and ends in there.


Posted by: Marc DeGirolami | Mar 4, 2011 1:57:33 PM

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