- The Washington Times - Tuesday, March 6, 2001

Free speech claims are to Supreme Court Justice Anthony Kennedy what Dulcinea was to Don Quixote: love at first sight, strengthened by a fevered imagination, that awakens an overwrought craving to destroy the perceived enemy. His free speech opinions are regularly evocative of Quixote's comical tilting at windmills, but more worrisome because they make ill-considered and Talmudic constitutional law. Last week's razor-thin 5-4 opinion in Legal Service Corp. vs. Velazquez (Feb. 28, 2001) by the handsome associate justice holding a Legal Services Corp. welfare litigation restriction unconstitutional is emblematic.

In 1974, Congress fathered the LSC to distribute federal funds to local legal service providers to assist indigents in non-criminal proceedings. Before its birth, an unknowable number of potential constitutional challenges to federal or state welfare or other laws were unviable because the costs of litigation were too steep. Those unfiled cases, of course, left courts with fewer opportunities to make constitutional decisions binding on coequal branches of government. But that downward effect on the volume of constitutional jurisprudence, according to Justice Kennedy in Velazquez, was unproblematic. He agreed that, "Congress was not required to fund an LSC attorney to represent indigent clients; and, when it did so, it was not required to fund the whole range of legal representations or relationships."

In 1996, Congress determined to narrow LSC funding of welfare litigation to target its limited resources to challenging simple eligibility rules under outstanding statutes and regulations. Typically more expensive and complex constitutional attacks or defenses of welfare statutes or regulations were made taboo for LSC-funded attorneys. For instance, a federally subsidized lawyer could not urge that conditioning welfare on a recipient's consent to drug testing violated the Fourth Amendment prohibition of unreasonable searches or seizures. Similarly, he could not defend against a claim that a welfare regulation permitting delivery of services through faith-based organizations violated the separation of church and state mandated by the First Amendment's establishment clause.

Congress did not champion the LSC welfare litigation restriction to manipulate or thwart courts in the development of constitutional welfare law. Attorneys underwritten by the LSC could transfer constitutional cases to pro bono attorneys or non-funded public interest lawyers. Furthermore, the 1996 restriction left constitutional litigation over welfare laws in the same place it was before the genesis of LSC 22 years earlier, which Justice Kennedy insisted was irreproachable.

He fumed, nevertheless, that the 1996 constitutional litigation exclusion violated the First Amendment's sanctuary for freedom of speech. The aroused high priest of the nation's judiciary preached that Congress may not design a subsidy that distorts the traditional role of attorneys in representing clients and the functioning of the independent judicial department "to say what the law is." Justice Kennedy elaborated: "By seeking to prohibit the [federally funded] analysis of certain legal issues and to truncate presentation to courts [by subsidized attorneys], the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power."

Justice Kennedy's rodomontade may stir a fluttering of a First Amendment heart, but is thoroughly unconvincing to the mind. The 1996 litigation limit did not distort the traditional adversarial role of the lawyer; it simply insisted that constitutional challenges or defenses of welfare rules be undertaken by non-subsidized attorneys to leave more resources for more routine non-constitutional welfare litigation in which courts would still enjoy the final word. Furthermore, the 1996 law made no attempt either to oust federal courts from jurisdiction over constitutional suits or to encourage the judiciary to deny constitutional claims. The functioning of the judiciary was simply restored to its pre-LSC status, which Justice Kennedy declaimed was constitutionally undisturbing.

He retorted, nevertheless, that while Congress had resisted tampering with specific judicial decisions, it had acted with the illicit purpose of drawing "lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable." In other words, the congressional exclusion bespoke hostility to constitutional arguments when welfare was at stake, not a non-ideological husbanding of LSC funds. But Justice Kennedy pointed to no language, findings or history of the 1996 law to substantiate his accusation.

It might have drawn strength if constitutional challenges to welfare rules were generally impractical before the creation of LSC. The evidence, however, is to the contrary. Unsubsidized attorneys, for instance, challenged before the Supreme Court durational welfare requirements in Shapiro vs. Thompson (1969), the absence of due process protections in pursuing welfare claims in Goldberg vs. Kelly (1970), a family ceiling on welfare grants in Dandridge vs. Williams (1970), and discrepancies in levels of welfare benefits among different categories of recipients in Jefferson vs. Hackney (1972). And in Department of Agriculture vs. Moreno (1973), attorneys with no federal funds persuaded the court to hold unconstitutional a food stamp restriction aimed at "hippies" and "hippie communes."

In sum, Justice Kennedy's fret that the 1996 law de facto would prevent federal courts from adjudicating constitutional welfare claims was delusional. He needs reminding that free speech romanticism should not be conflated with unstarry-eyed judging.

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