The Supreme Court 2000:
A Symposium

Copyright (c) 2000 First Things 106 (October 2000).

[Symposium Contents]

Robert P. George

In 1993, Colorado enacted a law prohibiting any person within one hundred feet of a “health care facility” to approach—indeed, to come within eight feet of—another person in order to hand that person “a leaflet or handbill,” “display a sign,” or “engage in oral protest, education, or counseling with that person.” A straightforward violation of the First Amendment’s prohibition of “laws abridging the freedom of speech,” right? Not according to a solid majority of six Justices of the Supreme Court.

In Hill v. Colorado, liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, joined by the centrist Sandra Day O’Connor and the conservative William Rehnquist, ruled that Colorado’s statute is a constitutionally legitimate exercise of the state’s police powers. It is, Justice Stevens assured his fellow citizens in the opinion for the Court, a “content–neutral” restriction that regulates, “not speech,” but merely certain “places where some speech may occur.” Got that?

Wait a minute, you say. Rehnquist’s vote we can, perhaps, understand. He has never taken an especially expansive view of First Amendment limitations on state police powers. But aren’t the liberal justices self–described champions of the most generous understanding of individual freedoms—particularly the right of freedom of speech?

Liberal jurists and their supporters typically say that burning the American flag, for example, is constitutionally protected speech. They insist that Nazis have every right to parade their hate past the homes of elderly Holocaust survivors living in a quiet residential neighborhood in Skokie, Illinois. That, too, is what the Constitution means by “free speech.” Indeed, not all that long ago liberal Justices of the Supreme Court were accusing the State of Indiana of shredding the First Amendment by enforcing public nudity laws against table top dancers at the Kitty Kat Lounge in downtown South Bend. Lewdly wiggling one’s naked body in a public barroom is, once again, “free speech.”

But “protesting,” “displaying a sign,” “counseling,” “handing out a leaflet” in front of a “health care facility”—that is not constitutionally protected free speech.

What on earth is going on here?

No doubt you’ve guessed by now. The so–called “health care” facilities that Colorado’s law was designed to shield from protests, signs, counseling, leaflets, and the like are, of course, abortion clinics. The women entering these specially protected facilities are not sick, they are pregnant. The “choices” they are about to execute are not “health care” choices, but rather what abortion defender Ronald Dworkin, with remarkable candor, describes as “choices for death.” And when it comes to immunizing such “choices” from legal restriction or even private remonstration, the Court’s liberals can be counted upon to flip on the switch of what Justice Antonin Scalia, writing in dissent, describes as “the ad hoc nullification machine that [is] set in motion to push aside whatever doctrines of constitutional law stand in the way of the highly favored practice of abortion.”

Abortion is pure destruction. It destroys the human beings whose lives are snuffed out in utero. It is destructive of the interests of women who are so very often, and in so many respects, truly abortion’s “secondary victims.” And, as Scalia does not tire of remarking, it has proven to be destructive of the institutions of American democratic self–government and, indeed, the basic integrity of our constitutional system. Abortion’s record is one of taint and damage to everything it touches, not least, as even Justice Anthony Kennedy (who, after having cast his lot with the pro–abortion justices in the 1992 Casey decision, joined the dissent in Hill) now seems to see, fundamental American constitutional principles. Free speech is only its most recent victim.

Does anyone doubt—even for a moment—how the liberal Justices would have resolved the case if, instead of abortion clinics, coal mines, for example, or gun dealerships, or, heaven help us, tobacco shops would have been the “facilities” singled out for unique immunity?

Chief Justice Rehnquist’s vote, no doubt, would have remained the same. But who really thinks that Justices Stevens, Souter, Ginsburg, Breyer, or even O’Connor would have found restrictions on protesting, leafleting, etc. to be regulations “not of speech, but merely of certain places where some speech may occur”? They would have voted to invalidate the law instantly.

Hill v. Colorado came out as it did only because the speech actually restricted by the law is pro–life speech. The majority’s proposal that the Colorado statute is “content–neutral” is a sham—an embarrassingly obvious one.

So the Court upheld a state law that it should have struck down. Too bad, someone might say. But shouldn’t critics of “the judicial usurpation of politics” take at least some comfort in the fact that the error was on the side of democracy, as it were? After all, the Court’s ruling left intact a piece of democratically enacted legislation. If the liberal Justices are guilty of partiality and hypocrisy in Hill, isn’t the same true of their critics who have, in the past, sharply criticized the Justices for usurping legislative authority and substituting their personal preferences for the contrary judgments of the people’s elected representatives? Isn’t that their criticism of the Court’s decision in Roe v. Wade?

This canard is easily disposed of. Critics of the regime of judicial rule, such as those of us who contributed to First Things’ November 1996 symposium, “The End of Democracy? The Judicial Usurpation of Politics,” do not object to the judicial enforcement of constitutional guarantees. We are not radical democrats who believe that judicial review of legislation is in principle unconstitutional and illegitimate. What we object to is, first, the judicial manufacture of constitutional law to displace without constitutional warrant the duly enacted judgments of the people and their elected representatives, and, second, the idea of judicial supremacy that treats the executive and legislative branches of the federal government as impotent to do anything but bow down before unconstitutional exercises of judicial power, however blatant and destructive of the constitutional order.

Although some of us are Catholics, we believe that Jehovah’s Witnesses and others who oppose Catholic teaching, for example, have a judicially enforceable First Amendment right, even within a hundred feet of a church, peacefully to approach Catholics to talk them out of attending Mass and hand them pamphlets claiming that the Pope is the Antichrist and the Church is the Whore of Babylon. Unlike the alleged constitutional right to abortion, which is a pure judicial fabrication in the cause of the contemporary liberal moral–political agenda, the guarantee of freedom of speech, which centrally protects the advocacy of ideas (the stretch to things like nude dancing is absurd), is a true constitutional principle. Good and honest judges will actively enforce it—and they will do so in an impartial and truly content–neutral way. The ideas of Jehovah’s Witnesses and Catholics, of defenders of the rights of the unborn and advocates of abortion, are fully, and equally, protected.

Even more than the tragic—truly frightening—decision invalidating laws against partial–birth abortion in Stenberg v. Carhart, the Court’s ruling in Hill shows that what is driving liberal jurisprudence is not simply a failure to understand the need for “judicial restraint” in our scheme of constitutional government. The problem is not, or not simply, that Justices such as Stevens and Souter have embraced a “judicial activist” philosophy of judging. What propels the liberal jurisprudential project is—liberal ideology. The project is utterly unprincipled. Liberal judges will be “activist” or “restrained” depending on what, in a given case, best serves whatever liberal cause is at issue. Whether they are invalidating a law protecting partially born babies, or upholding one restricting the speech of pro–life counselors, their invocation of constitutional principles merely provides rhetorical cover for decisions dictated by ideological goals.

Of course, I should not sweep too broadly in condemning “liberal” jurists. There are honest liberals, and, truth be told, more than a few are alarmed by the outcome and embarrassed by the argument in Hill. They do not accept, any more than do conservative critics of the Court, the claim of the majority Justices that “the Constitution made me do it.” As true friends of First Amendment freedoms, they recognize that the Constitution dictated an altogether different result.

May I respectfully suggest that they say so publicly?

Robert P. George is McCormick Professor of Jurisprudence at Princeton University.