Curse of judicial minimalism

WASHINGTON — Even when Supreme Court decisions are unanimous, the justices can be fiercely divided about fundamental matters, as was demonstrated by two 9-0 rulings last week. One overturned a Massachusetts law restricting speech near abortion clinics. The other invalidated recess appointments that President Obama made when the Senate said it was not in recess. In the first, four justices who concurred in the result rejected the majority’s reasoning because it minimized the law’s constitutional offense. In the second, four justices who concurred with the court’s judgment that Obama had exceeded his powers argued that the majority’s reasoning validated the Senate’s long complicity in practices that augment presidential power by diminishing the Senate’s power to advise and consent to presidential nominations.

A provision of Massachusetts’ law stipulated 35-foot zones around abortion clinics, from which spaces people wanting to engage in sidewalk counseling — urging women to forgo abortions — would be excluded. Another provision that makes it a criminal offense if someone “knowingly obstructs, detains, hinders, impedes or blocks” persons approaching abortion clinics raises no First Amendment problems. The challenged provision, however, proscribes persuasion in a public place, speech which unwilling listeners can walk away from.

The court unanimously held that the state may not protect persons seeking abortions from peaceful attempts to change their minds. But Chief Justice John Roberts, practicing judicial minimalism, argued only that the Massachusetts law was unnecessarily broad for protecting public order. Roberts wrote that the buffer zone — a euphemism for a no-speech zone — is “content neutral” because it does not discriminate against a particular point of view. This nonsense may have been necessary for preserving unanimity with the more liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Antonin Scalia, however, in a concurrence that was 95 percent dissent, called Massachusetts’ law “unconstitutional root and branch” because, far from being content neutral, it pertains only to abortion clinics, it predictably will restrict only persons speaking against what the clinics do, and it restricts them in places — public sidewalks — where free speech is protected. Justices Anthony Kennedy and Clarence Thomas joined Scalia’s concurrence and Justice Samuel Alito wrote a similar one.

The second 9-0 decision rebuked Obama for one of his anti-constitutional excesses. But that foreordained result was less important than the peculiar reasoning that perhaps was necessary to make unanimity possible.

A Washington state business, having received an adverse ruling from the National Labor Relations Board, argued that the board had an illegitimate quorum. Obama had made recess appointments to the board when the Senate was holding (as it has done with the consent of both parties) pro forma meetings — and conducting some business — every three days to establish that it was not in recess.

Obama, with his characteristic constitutional crudeness, is the first president to assert that he can declare the Senate in recess during three-day sessions, which the Constitution stipulates is the maximum time the Senate can adjourn without the House’s consent.

The Recess Appointments Clause says: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.” Note the words “happen” and “the” — the definite article — before “recess.” Nevertheless, for much of the nation’s life, presidents have been making, without strenuous Senate objections, intra-session as well as inter-session recess appointments to fill vacancies that did not occur during the recess.

The court did not quite rule that tradition validates departures from the Constitution’s text. But neither did it say, as it should have, that even long-standing practices should end when they are deemed to conflict with an unambiguous text. Instead, Breyer practiced a perverse form of judicial restraint, decreeing that a recess of less than 10 days is “presumptively” too short for recess appointments. In another dissent-as-concurrence, Scalia, joined by Roberts, Thomas and Alito, noted that Breyer’s presumption leaves presidents with much more latitude than the Constitution’s text stipulates.

Unanimity is not only spurious, it is injurious when purchased at the price of compromises that suggest disingenuousness. The Constitution’s purposes and architecture were sacrificed twice to produce 9-0 decisions. One denied the obvious — that Massachusetts’ law was written to impede anti-abortion speech. The other flinched from the fact that the Recess Appointments Clause requires judicial enforcement, not Breyer’s judicial embroidery to allow continuation of behavior that both elected branches under both parties have found convenient. Two conservative priorities, defending freedom of speech and curtailing arbitrary exercises of presidential power, were undermined by judicial minimalism — aka judicial restraint — that conservatives praise more frequently than thoughtfully.

George Will’s syndicated column appears Thursdays and Sundays in the Tribune-Herald. His email address is georgewill@washpost.com.