DANIEL VAUGHAN: First Amendment and administrative law are top priorities for Kennedy’s successor

July 9, 2018

Roe v. Wade gets all the attention in the media, but the two most important areas of law for the next Supreme Court justice are the First Amendment and reining in the administrative state.

And as we’ve seen in cases like Masterpiece Cakeshop, the regulatory state has also attempted to curtail speech and religious rights.

You can see how this is true by watching retiring Justice Anthony Kennedy in his final term.

As the Supreme Court announced its decisions, legal scholars noticed a trend this term: in the 5-4 decisions, Kennedy didn’t side with the liberal wing on a single case. And when the case involved the First Amendment, Kennedy remained firmly on the side of the other conservative justices.

No one knows exactly why Kennedy decided to retire now; he’s an unpredictable justice. But after last term’s spate of free speech cases, combined with the pro-censorship, leftward lurch of the fringe-left Ginsberg wing, Kennedy may well have retired now to preserve his seat for someone committed to defending the First Amendment.

You can read the tea leaves by looking at three cases from his final term.

First up was NIFLA v. Becerra, a case in which the Supreme Court struck down California’s laws forcing crisis pregnancy centers to provide women with information on how and where to get an abortion (among other requirements).

The Court struck it down, holding that California’s law was unconstitutionally compelled speech.

Kennedy wrote a concurrence in the case, and noted how authoritarian the law was, and by implication, how tyrannical Justices Ruth Bader Ginsberg and Sonia Sotomayor were in arguing in favor of the law. He wrote:

It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.

Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

Free speech is under attack in America by authoritarian sects of society, Kennedy said.

That’s a remarkable claim from a center-right justice getting ready to retire from the bench.

The authoritarian nature of leftist administrative commissions came up again in the Masterpiece Cakeshop v. Colorado decision. Writing the majority opinion of the Court, Kennedy was struck by the blatant anti-religious sentiment displayed by the progressive members of Colorado’s Civil Rights Commission.

He wrote:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.

The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

Again, just like the NIFLA v. Becerra case, the Ginsberg/Sotomayor side of the court found nothing wrong with forcing compelled speech on a person. Ginsberg went so far as to dispute the record, seeing nothing out of the ordinary with the Colorado Commission.

The last case decision of the term was the Janus v. State, County, and Municipal Employees decision, which struck down forced union fees from people who neither want to be a part of the union or pay dues.

You’d think, as an employee, if you didn’t want to join a union or pay dues to it, as a teacher, fireman, policeman, or some other public sector employee, that you’d be free not to. You’d also think that governments forcing people to pay dues to unions that advocate political positions they disagree with would be a layup.

But once again, the liberal wing of the court argued there was nothing wrong with forcing people to pay dues to an organization they didn’t like or support.

Kennedy heard all the arguments for these cases and watched the liberal wing move further to the left and in favor of censorship, compelled speech, and other positions he deemed fundamentally authoritarian.

He also knew these laws would continue to be litigated, as more blue states passed similar laws.

The court has seen a steady stream of First Amendment cases over the last decade. The most prominent was the Citizens United decision, when the government argued that it had the power to ban books.

More cases will appear before the court on this front.

Fighting back these authoritarian laws will be one of the primary challenges for Kennedy’s successor. And Kennedy, knowing this, stepped down now to ensure the Supreme Court would continue in a pro-First Amendment direction.

Reining in the administrative state and protecting the First Amendment are the two hardest fights ahead for the Supreme Court. Overturning Roe could happen, but that’s one small area of law compared to the litany of ways the federal bureaucracy is trying to strip away our rights.

All of the finalists lined up by the White House are staunch conservatives. Here’s to hoping whoever President Donald Trump picks tonight stands as an even stronger bulwark against the tide of authoritarianism noted by Anthony Kennedy.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.