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.