A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments

Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.

1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.

Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.

(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)

2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.