For a panel that’s supposed to be irrecoverably partisan, the justices of the Supreme Court just did a pretty good job this week resolving divisive legal issues unanimously. On Thursday, the court settled an abortion-related free-speech case and then an executive-power question without a single dissent. This followed an important case where the justices agreed to restore lost Fourth Amendment protections for the digital age.
Four years ago, President Obama planted the seeds of bitter discord with a remarkable broadside against the court in his State of the Union address. Liberal pundits dutifully followed his lead and played up disagreement as a Republican-Democratic split. The editors of the far-left Nation magazine asked, “Are Americans losing trust in the Supreme Court?” The Los Angeles Times wondered, “Are Supreme Court justices becoming ‘party judges’?” The New York Times’ Adam Liptak wrote of “The Polarized Court.”
Justice Elena Kagan, who formerly served as one of Mr. Obama’s White House lawyers, and Sonia Sotomayor, another of the president’s appointees, weren’t doing party business when they joined in telling Mr. Obama that he crossed the line when he installed three appointees at the National Labor Relations Board while the Senate was still in session. Under the Constitution’s advise-and-consent clause, the Senate must consent to a nominee, unless it is in recess.
Writing for the court, Justice Stephen Breyer, a liberal’s liberal, noted that the court has never had to address the details of the consent clause in the nation’s 200-year history; Mr. Obama’s power grab was truly unprecedented.
Justice Breyer and Justice Antonin Scalia disagree about how long the recess must be before a recess appointment can be made, but they are emphatic on the fundamental principle that three days does not a recess make. “We hold that for purposes of the Recess Appointments Clause,” Justice Breyer wrote, “the Senate is in session when it says it is.” Since the Senate had the power to convene its members and act on the nominees, it was not in recess, and the appointments should not have been made.
The president was not the focus of the 9-0 decision in McCullen v. Coakley, but a friend of his, Massachusetts Gov. Deval L. Patrick, was. Mr. Patrick signed a law designed to prevent pro-life groups from expressing their opinion within 35 feet of an abortion clinic under threat of penalties that rise to a $5,000 fine and 2 years in jail.
The law was a direct attack on the practice of “sidewalk counseling,” so called, in which opponents of abortion provide information on alternatives, such as adoption, to women arriving at the clinic. Chief Justice John Roberts said in the opinion of the court the sidewalk is a common forum for expressing ideas, and shutting down certain types of speech infringes on a fundamental freedom.
Massachusetts didn’t attempt to use less intrusive means to accomplish its stated goal of preserving public safety on the sidewalk. Existing laws could do that. “To determine whether a protester intends to block access to a clinic,” wrote Chief Justice Roberts for the court, “a police officer need only order him to move.”
To be sure, splits will be there when the court delivers its most controversial decisions on Obamacare and public employees by Monday. Because the high court reserves the use of one voice to defend an important principle, such as free speech and the separation of powers, it’s important to listen when it does.