Will: Sacrificing Constitution for unanimity

By George Will, Columbian Syndicated Columnist

Published:

 
photoGeorge F. Will

Even when Supreme Court decisions are unanimous, the justices can be fiercely divided about fundamental matters, as was demonstrated by two recent 9-0 rulings.

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 majority's reasoning validated 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.

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.


George F. Will is a columnist for the Washington Post Writers Group.