Category: Supreme Court

1

FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

Justice Department targets Assange . . . & other leakers  Read More

0

FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven Read More

0

FAN 147.1 (First Amendment News) Music is their medium; the name is their message — The Slants perform @ Flying Dog Brewery

Text of the First Amendment above door in Flying Dog Brewery

The beer was flowing / the crowd was roaring/ the free-speech lawyers were showing / as the First Amendment Society (Erin Weston, Executive Director) brought The Slants to the Flying Dog Brewery in Frederick, MD. for a performance during the band’s East Coast tour. Flying Dog’s CEO Jim Caruso introduced The Slants.

Recall, this is the Asian rock-dance band whose case (Lee v. Tam) was argued before the Court on January 18, 2017. The issue is whether the disparagement provision of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

The band, the amicus lawyer (Ilya Shapiro) & the brewer (Jim Caruso)

The Slants were in fine fighting form as they filtered their message through melodic modes mixed with razor-cut messages in Fight Back, one of the songs from their latest EP — The Band Who Must not be Named (In Music We Trust Records, 2017).

The Portland, Oregon synth-pop group melodiously veered through such free-speech anthems as their From the Heart:

Sorry if our note’s too sharp
Sorry if our voice’s too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

lead singer Ken Shima

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna get in our way

There’s no room
For your backwards feelings
And backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
Know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

First Amendment guys Bob Corn-Revere & Ilya Shapiro

So sorry if you take offense
But silence will not make make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backwards feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle 

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

0

Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

2

Obsolescence Watch–Clinton v. Jones

Consider this passage in light of the litigation pending against the President and what will surely be filed over the next couple of years:

“[I]n the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.”

4

FAN 147 (First Amendment News) Was Justice Scalia a First Amendment free-speech originalist?

His originalism was selective . . . and essentially absent in his First Amendment free speech jurisprudence . . . .

Like a great majority of originalists, although he recognized the problems with applying originalism, in practice he seemed to practice law office history.

Scalia was not an historian . . . His originalist opinions were almost always one-dimensional . . .  David Dorsen 

When it came to freedom of expression under the First Amendment, was Justice Antonin Scalia’s jurisprudence grounded in originalism? Did his First Amendment opinions in the following Roberts Court cases and elsewhere reflect the originalist jurisprudence he made famous?

During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

  1. Davenport v. Washington Educ. Association (2007) (9-0)
  2. United States v. Williams (2008) (7-2)
  3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
  4. Brown v. Entertainment Merchants Association (2011) (7-2)
  5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

  1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
  2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
  3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

  1. McCullen v. Coakley (2014) (9-0)
  2. Doe v. Reed (2010) (8-1)
  3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
  4. Citizens United v. Federal Election Commission (2010) (5-4)

Justice Scalia & David Dorsen

How much did his originalist jurisprudence affect his thinking in those cases and others? Not much, says David Dorsen, author of The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Cambridge University Press, 2017).

In his latest book, Mr. Dorsen (who was a friend of the Justice) writes of Scalia’s “failure to look to the original understanding or meaning of many First Amendment issues ….” In a soon-to-be-posted interview I did with Mr. Dorsen for SCOTusblog, he added: “His originalist jurisprudence did have gaps. Perhaps the most important one was the freedom of speech (aside from pornography).”

Among other things, Dorsen argues that Scalia’s vote in Texas v. Johnson was inconsistent with his originalism: “No textual or historical evidence supports the contention that the society that adopted the First Amendment understood it to cover communicative activity like flag-burning. Symbolic expression, such as pictures and signs, were largely included, but that was it.”

“The distinction between content-based and content-neutral speech, the concepts of conduct as speech and fighting words, and the idea of conduct as protected speech are mid-to-late-twentieth century creations.”

Drawing on Professor Akhil Amar’s analysis, Dorsen maintains that Scalia’s opinion in R.A.V. v. City of St. Paul (1992) (cross burning) amounted to “‘an ambitious reconceptualization and synthesis of First Amendment doctrine.'”

Mr. Dorsen says more, much more, about Justice Scalia’s free-speech jurisprudence and originalism in his book, most of which highlights what Dorsen sees as the inconsistencies between the two.

 Again, more will be said on Justice Scalia’s originalism and textualism later this week in my SCOTUSblog Q&A with David Dorsen.

Related 

  1. Geoffrey Stone, Justice Scalia, Originalism and the First Amendment, Huffington Post, October 12, 2011
  2. FAN 7:  Justice Scalia & the First Amendment, March 19, 2014
  3. Gene Policinski, Justice Scalia: The 45 words — and original meaning — of the First Amendment, Newseum Institute, February 16, 2016
  4. Steven Heyman, Justice Scalia and the Transformation of First Amendment Jurisprudence, SCOTUS Now, February 27, 2016
  5. See Originalism and the First Amendment, Federalist Society Panel, Nov. 18, 2016 (Nadine Strossen, David Forte, & Bradford Clark)
  6. David Lat, Justice Scalia, Originalism, Free Speech And The First Amendment, Above the Law, November 22, 2016

Newseum Event: The President & the Press: The First Amendment in the First 100 Days

Today the Newseum is hosting a half-day forum that will explore the Trump administration’s relationship with the press in the critical first months. The program will be held at the Newseum and will feature one-on-one conversations, panel discussions and individual presentations.

Participants, including White House Press Secretary Sean Spicer and Counselor to the President Kellyanne Conway, will explore pertinent challenges to the First Amendment, a free press and protecting the free flow of information in a divided nation.

→ Live video feed here.

Guests include:

  • Jim Acosta, CNN
  • Mike Allen, Co-founder and Executive Editor, Axios
  • Bret Baier, Fox News
  • Carrie Budoff Brown, POLITICO
  • Kellyanne Conway, Counselor to the President
  • David Fahrenthold, The Washington Post
  • Ari Fleischer, former White House Press Secretary, George W. Bush
  • David Kirkpatrick, journalist and author of “The Facebook Effect: The Inside Story of the Company That Is Connecting the World”
  • Julie Pace, The Associated Press
  • Jennifer Palmieri, former White House Communications Director, President Barack Obama
  • Bob Schieffer, CBS News
  • Sean Spicer, White House Press Secretary
  • Charlie Spiering, Breitbart News
  • Brian Stelter, CNN
  • Greta Van Susteren, MSNBC
  • Cecilia Vega, ABC News
  • Glenn Thrush, The New York Times
  • Kristen Welker, NBC News
  • Michael Wolff, The Hollywood Reporter

Headline: “NRA Readies Next Attack Against The First Amendment” Read More

3

Bushrod Washington

In thinking about future projects, I also wonder sometimes about writing a biography of Justice Bushrod Washington, George Washington’s nephew.  No book has been written about him since the 19th century, but there’s a lot of potential there. First, he was G. Washington’s confidant as a young man and inherited his papers and Mount Vernon after Martha Washington’s death. Second, he was on the Supreme Court for thirty-one years and was the right hand of John Marshall for much of that time (he and Marshall were friends from their days studying law as apprentices). Third, he was the first leader of the American Colonization Society, which sought free slaves and repatriate them to Africa, even though he owned slaves throughout his life. Fourth, he wrote Corfield v. Coryell, which was often cited by proponents of the Fourteenth Amendment as the most significant articulation of fundamental rights by a court in the ante-bellum era.  There’s more–he was also a delegate at the Virginia ratifying convention for the Constitution–but you get the idea.

Of course, whenever there is no book about someone that could be because (1) he was dull; (2) his papers are disorderly, or (3) there are too many to count.  Whether any or all of these are true in his case, we’ll see.

0

FAN 146 (First Amendment News) Upcoming Conference: “Truth, Lies and the Constitution”

The Twenty-Fifth Annual Ira C. Rothgerber, Jr. Conference is sponsored by Colorado Law’s Byron R. White Center for the Study of American Constitutional Law. The annual event seeks to explore a broad range of issues related to law and lies. 

This year’s conference takes place on Friday, April 14 from 8:15 a.m. – 3:00 p.m. and is titled “Truth, Lies and the Constitution.” The event will be moderated by Professor Helen Norton.

Panel I: Lies, Law, and Public Policy

  1. “Sex, Lies, and Ultrasound” — Jessie Hill, Case Western Reserve University School of Law
  2. “Falsehoods and the Press” – Helen Norton, University of Colorado School of Law
  3. “Too Incredible to be Believed” — Catherine Ross, George Washington University Law School
  4. “Climate Change Denial, Citizen Competence and the First Amendment” — James Weinstein, Arizona State University Sandra Day O’Connor College of Law

Panel II:  Deception, Hypocrisy, and the Constitution

  1. “The Lie of the Supremacy Clause and the Dakota Access Pipeline” — Carla Fredericks, University of Colorado School of Law
  2. “Truth, Lies, and the Confrontation Clause” — Mark Spottswood, Florida State University College of Law
  3. “Free Speech Hypocrisy:  Campus Speech, Engagement and the Sub-legal First Amendment” — Christina Wells, University of Missouri School of Law

Panel III: The Diversity of Lies (and Other Forms of Deception): Legal Theory and Doctrine

  1. “Material Benefits, Cognizable Harms and the Scope of the Constitutional Protection for Lies” — Alan Chen & Justin Marceau, University of Denver Sturm College of Law
  2. “Categorizing Lies” — David Han, Pepperdine University School of Law
  3. “The Law of Deception: A Research Agenda” – Gregory Klass, Georgetown Law

→ For more information, please go here.

Look up, look around — ACLU launches multilingual ad campaign Read More

0

Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.  http://www.newyorker.com/magazine/2017/04/03/why-its-become-so-hard-to-get-an-abortion.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.

0

Alan Morrison Interviews Justice Stephen Breyer

Professor Alan Morrison

If you have yet to see it, the current issue of the Journal of Legal Education contains an interview Professor Alan Morrison did with Justice Stephen Breyer. The interview is from the January 7, 2016 annual meeting of the American Association of Law Schools. Here are a few excerpts from the transcript of that exchange.

  • Morrison (three things I won’t ask) When I was told, Justice Breyer, that we were going to have this conversation I said there were three things we were not going to talk about: 1) cameras in the courtroom; 2) collegiality among the members of the Court; and 3) the presidential election. . . .
  • Justice Breyer (On why he writes books): I was a professor for a long time. I wouldn’t have been in that job, and you wouldn’t be in your jobs unless you like explaining things to people. Isn’t that true? We learn things, and you like to explain them. We can’t control it if they want to benefit or not from what we explain—that’s their problem. But, my goodness, that’s what we do. So stop me before I write again! . . . . The best way for me to do it—as is often the best way for you to explain law in general to a  rst-year class—is to take a subject and go through the whole thing. What you are doing in teaching that subject, you are really teaching something about law, you’re teaching something about American life, and you’re teaching something about how we live today, yesterday, tomorrow in this country. All right, I’ll try. And so I’ve written three books about the Court.
  • Justice Stephen Breyer (credit: The Nation)

    Alan Morrison (on the Steel Seizure Case): When you discuss the Youngstown case in your book, you spend a lot of time talking about the backstory. Do you think that law professors should spend more time talking about the backstory in cases when they’re trying to explain what the outcome is? . . . In a lot of other cases in the book, you talk about things that don’t readily appear in the opinion, or you’ve got to dig for them, and really did in influence the outcome. I’ve always thought that, for example, in Youngstown, the fact that Truman could have stopped the strike by letting the steel companies increase their prices the next day always had a bearing on the willingness of the Court to go along with Truman.

  • Justice Breyer (response): Truman was told by his people in charge—Charlie Wilson, electric Charlie—he was told that if you do this and break your price controls, you will see prices going up all over America, and that’s going to create a pretty bad in ation, which we don’t want at the time of the Korean War. So yeah, maybe, maybe not. I mean, the story there to me shows there’s nothing obvious. Truman’s decision wasn’t that unreasonable, in my opinion. But the Court did think that. Now why tell the backstory? There, I think the backstory is important. Why is it important? There might not be an ERISA case, probably isn’t, but it probably is there. I think the truth of that area of the law was well said by Justice Jackson. He said—I’ve had to look up a few of these, as many of us have—he says, “When you look to see what the founders thought” (and I would add to that “what prior cases hold in this big area, security versus the inherent powers of the President”) “when you look to see what the President said, what the founders thought… it’s like Joseph interpreting the dreams of Pharaoh.” Yeah, that’s right. I mean, you try it. We had a case not too long ago that was something like that, that was the case of the President’s recess appointment power. What law is there on that? All I can say is, no matter how little you think there was, there was still less than that. . . .
  • Morrison (on judicial interpretation): I’d like to talk about your approach to interpretation. [In your book] you say you use “text, history, precedent, purposes and values, and consequences.” Is there anything you don’t use?
  • Justice Breyer (response): . . . Well, we’re a statutory court. We deal with statutes, and most courts do now. And we’re interpreting a text, we’re interpreting some words on a piece of paper. And there are, at least in our Court, several different interpretations that are pretty difficult to say which is which. We take cases where lower courts have come to different conclusions on the same matter of law. They’re good judges, but they’ve reached different conclusions as, in all likelihood, there are going to be different reasonable interpretations of those words. I do believe all judges—if you look into it, I think all judges do, in fact, use those six factors.The first thing they look to is the text. The text doesn’t always answer the problem; I think it usually doesn’t in our Court. But if the text says fish, that does not mean a carrot. A carrot is not a fish. The text does put limits on what you can say. And history, tradition—what’s res ipsa loquitur, I mean, what is habeas corpus? Indeed. And what was the history from which this statute emerged? Indeed. Precedent. Again, the precedent doesn’t answer the question, normally, because, if it did, why is this case here? Consequences, I think, are very important. Not any consequences in the world. I want to know purposes  first. There was some human being who wrote those words. Why? What was the object? Given the statute, what was the object? Purposes. They always have a purpose, those words.
  • Breyer (re interpretation: history & text vs purposes & consequences): . . . I think the differences between us within the Court, insofar as they’re general, are often a question of how much weight you tend, over time, to put on purposes and consequences compared with tradition, history, texts, and precedents. . . . There are risks on both sides, and there are arguments on both sides. And we’ll talk about it—it turns up, those differences will often turn up in individual cases, but I think those kinds of differences really play a much greater role in reaching di erent results than anything that would normally be called politics. . . .