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Monday, April 15, 2019

"Barnette at 75" and "A Close Reading of Barnette, in Honor of Vincent Blasi"

I was grateful to Howard, the stationmaster of our blog, for inviting me to participate last fall in a wonderful symposium at Florida International University's law school on the 75th anniversary of West Virginia State Board of Education v. Barnette. Howard and the editors of the FIU Law Review invited a fine group of scholars (plus me) to speak, and it was a very good day, keeping in mind that "a very good day" is sort of the baseline in Miami. Now the Barnette symposium has come out in print and online. It can be found here

As Howard notes in his good and substantive introduction, the symposium is divided into three general topic areas. The first set of articles "focuses on Barnette's historical context." The second set focuses on "Barnette as text and the best way to read and interpret Jackson's words." (Justice Robert Jackson wrote the famously eloquent and aphoristic opinion for the Court.) The third and final set is on Barnette's "modern context" and "continued relevance"--especially its appearance in three major Supreme Court decisions in its 75 anniversary year: Masterpiece Cakeshop, Becerra, and Janus.

My contribution, A Close Reading of Barnette, in Honor of Vincent Blasi, is in the second category. As the title suggests, it's a "close reading" of Barnette, one that aims at reading Jackson's opinion itself and drawing all that I can from the text alone. My approach was inspired by the teaching and writing of Vince Blasi, who is one of my teachers and whose "close reading" assignments have inspired many of his former students who now teach in First Amendment law and other areas. Vince has long lamented that in legal education, students are generally asked to read and synthesize large chunks of doctrine drawn from small, chopped-up excerpts of cases, rather than reading individual cases in full and  engaging carefully with them as individual texts. His close reading assignments are an antidote to that. For years, I have gratefully stolen the idea from him and used it in my Law and Religion course, in which students do two close readings of individual cases or texts. Given the elite-reproduction nature of law school hiring, most of us owe considerable debts to teachers whose fame and prestige we can hardly advance and for whom we can do little in return that they really need. The best way to repay that debt is in how we treat our own students. But it was fun to pay explicit tribute to Blasi in this piece.

As it developed, I decided that I wanted to focus on passages other than the famous "fixed star" passage. It is almost literally an arresting passage: so evocative and powerful that it often hijacks the attention of scholars writing about Barnette, who thus neglect much else of importance in the opinion, including much that might help us read the "fixed star" passage more clearly. It is also worth noting and lamenting that my focus on the single majority opinion forced me to omit discussion of the concurring opinions, by Justices Black and Murphy, and Justice Frankfurter's dissent. The concurrences are generally ignored. Frankfurter's dissent in particular has long been short-changed, in large part because of the arresting nature of the opening, deeply personal passage in which he identifies himself as "one who belongs to the most vilified and persecuted minority in history." That passage has encouraged a general dismissiveness toward the dissent, in which casebooks (which skip the concurrences altogether) quote its dramatic opening but treat the dissent (most of which they omit) as a defensive outburst justifying his opinion in Gobitis and his place on the so-called "wrong side of history" in the flag salute litigation. There is actually much to learn from the concurrences and Frankfurter's dissent, each of which in various ways previews arguments and competing views--especially about law and religion--that would recur for the next 75 years and counting. For a fine recent discussion of Frankfurter's dissent, check out this piece by Sam Moyn. For various reasons that I hint at below, I think we can expect a revival of somewhat supportive scholarly interest in Frankfurter's dissent.        

Here's the abstract for my piece:

This article, written for a symposium marking the 75th anniversary of West Virginia State Board of Education v. Barnette, offers a close reading of Justice Jackson's opinion for the Court. In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars.

This close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention, largely because Jackson's arresting "fixed star" passage has monopolized much of the discussion. But other passages in the opinion help reveal additional important points about the case with important broader implications. They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case. They have implications for arguments about third-party harms, "government nonendorsement," student speech, and heckler's veto doctrine. And they underscore the importance of Jackson's description of an autonomous "sphere of intellect and spirit" and of the limits of state power in this area. Perhaps much more than has been recognized, Barnette is a paean to the sovereignty of the mind, and in doing so it treats this realm as much or more as a matter of state non-interference than as a subject for measured judicial balancing.

Although I focus closely on the text of the opinion itself, I offer some larger assessments of Barnette's condition today. I make two general observations. First, on the one hand, Barnette had an excellent 75th anniversary year, with citations and discussions in major Supreme Court decisions suggesting its stock is high. On the other, I suggest that it is in much poorer health in academic circles. A striking number of scholarly discussions of current issues, such as the wedding vendor cases, omit Barnette altogether. I suggest that these omissions are evidence of a deeper discomfort with Barnette. And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette. Second, I argue that in interesting ways Barnette is a kind of "pre-capitulation" of much that happened in First Amendment law in the 75 years that followed it. This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.

As the abstract suggests, although the heart of the article is the close reading itself, I do make some broader points about Barnette's place in First Amendment law and about how constitutional doctrine develops. I also argue, in an admittedly speculative fashion, that there is a kind of disjunction between Barnette's status on the Supreme Court and its status among legal scholars. As I note, many articles that might well have been expected to discuss Barnette have instead omitted it altogether. That may change after the most recent Supreme Court decisions, but that's hardly certain (and not all citations are genuine discussions). Of course, in making a general observation based on a citation search of recent legal scholarship, I do not deny that there are "honorable exceptions." But I do suggest that there are good reasons to suspect that many modern scholars might be (or ought to be) ambivalent about Barnette, given the import of that case for the implications of the theories and arguments they have been advancing of late, and that this ambivalence might express itself in part by bracketing Barnette through silence. I hope more of them will take it on directly and forthrightly, and without simply employing the usual lawyer's skill of narrowing or distinguishing it. Read for all it is worth and with its "music" in mind, it means more than that, and suggests real conflicts with the kinds of arguments that have been popular in recent years among First Amendment scholars--but not, for the most part and notwithstanding Justice Kagan's dissent in Janus [the initial post accidentally said "Masterpiece Cakeshop" here; my apologies and thanks to a commenter for pointing out the error] and its invocation of the rather unhelpful meme of so-called "weaponization," on the Supreme Court itself.

For some of these scholars, it might be that reflection will lead them to reject Barnette, in whole or in part. There's nothing wrong with that. The opinion isn't Holy Writ and indeed it's not the scholar's job to treat any text or opinion as beyond question. The worst that can happen is that openly questioning Jackson's opinion might deprive them of some strategic or rhetorical resources in advancing their arguments, and make it less likely that such arguments will win support from judges. But that only matters for political or litigation purposes and is irrelevant for actual scholarly purposes. Taking on Barnette directly, and without resorting to the usual lawyers' expedients, seems to me necessary for scholarly purposes and likely to make the kind of scholarship I am thinking of richer, more candid, and perhaps more self-critical (or bolder). And let me note finally that this symposium itself provides some such efforts. Pieces by Abner Greene, Erica Goldberg, Genevieve Lakier, and Leslie Kendrick all take on Barnette in the context of modern First Amendment debates on and off the courts. I'm delighted. I commend those pieces and the entire symposium, possibly including my own contribution, to readers. Enjoy! 

 

Posted by Paul Horwitz on April 15, 2019 at 09:41 AM in Paul Horwitz | Permalink

Comments

Justice Kagan did not dissent in Masterpiece Cakeshop.

Posted by: NB | Apr 15, 2019 4:26:58 PM

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