perspectives
J.K. Murphy, Vice President, SCNI jk.murphy@gwinnettdailypost.com
gwinnettdailypost.com
Todd Cline, Editor
todd.cline@gwinnettdailypost.com
PAGE 7 A • SUNDAY, JULY 6, 2014
The 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 George majority’s reasoning validated Will 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 dissentas-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 email address is georgewill@washpost.com.
our view
Reminder of public hearings for Gwinnett County millage rate The Board of Commissioners will vote on setting the county’s millage rate on July 15, but prior to that residents will have a chance to give their input during three public hearings that will be held before the vote. With the first hearings happening on Monday, we thought it was worth a reminder, especially after a holiday weekend. Chairwoman Charlotte Nash says a consensus has
not been reached yet as to what the commissioners will do concerning the millage rate. Said Nash: “We still have some work to do among ourselves as to what we actually adopt.” The hearings will be held at the Gwinnett Justice and Administration Center in Lawrenceville, beginning with the two on Monday. Those will be held at 11 a.m. and 6:30 p.m., with a third hear-
ing set for 6:30 p.m. on Monday, July 14. Written comments will also be accepted online at www. gwinnettcounty.com. The current millage rate is 13.75 mils for those who live in unincorporated Gwinnett, but because property values have improved this year due to an improved economy, individual tax bills would be higher even if the millage rate remains the same.
For those who want to learn more and to give their input, the public hearings on July 7 and July 14 will offer that chance. The unsigned editorials reflect the opinion of the Gwinnett Daily Post. Columns, letters to the editor and cartoons reflect the opinions of the individuals who penned them. It is the policy of the Gwinnett Daily Post to correct all errors of fact.
A land of freedom and opportunity Liberty is immensely valuable, but equally fragile. It is a choice each generation must make and, ultimately, defend. As Americans we have never shied away from this call, and I am grateful we continue to raise up young men and women eager to protect our freedom. The American republic is an exercise in selfgovernance and opportunity never before seen on the world stage. The United States of America is not simply a location on the globe, but rather an embodiment of ideas and ideals. It is the idea that by the sweat of your brow and the power of your intellect your tomorrow can be better than your today in a land of liberty
generation. More than a gift, though, it is also a great responsibility. John Quincy Adams once stated, “You will never know how much it cost the present generation to preserve your freedom. I hope you will make good Rob use of it.” I expect he Woodall would be tremendously proud of the extraordiand opportunity. It is an nary commitment and ideal for which the 56 men sacrifice that succeeding who signed the Declaragenerations have made to tion of Independence were protect and perfect that willing to risk their lives, freedom. fortunes and sacred honor. As we reflect on our Their risk wasn’t for con- extraordinary beginning quest, riches, or title for and present liberty, I pray themselves, but rather for we all heed President opportunity for a nation of Adams’ words and grasp people. their weight. Yes, it has This gift of self-deteralways been the responmination has been passed sibility of the present down from generation to generation to preserve the
freedom we all cherish so that it can be passed on to the next, but it is also the responsibility of us all to seize upon that freedom and make good use of it. On this Independence Day, let us remember to pay tribute to those who have come before, let us celebrate the freedom we have inherited, let us work diligently to ensure we pass along the same gift to our children and grandchildren, and let us commit to making good use of that freedom today. May God bless all of you, and continue to bless our remarkable country. U.S. Rep. Rob Woodall, R-Lawrenceville, serves on the House Budget Committee and the House Rules Committee.
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