For all the ridiculousness of the op-eds that pass muster at the New York Times, one writer held firm from falling prey to the hysteria. While shriekers like Linda Greenhouse would attack the justices of the Supreme Court as cynical tools of their political masters, doing everything she could to undermine the integrity of the least dangerous branch of government, there was still a voice of reason* at the Times who didn’t scream the sky is falling with every decision that didn’t comport with Greenhouse’s feelz. There was still Adam Liptak.
And now he’s gone.
How Conservatives Weaponized the First Amendment
When constitutional rights are reduced to “weapons” because they get in the way, it says nothing of the right and everything about the desired outcome. Sometimes it serves one tribe. Sometimes it serves the other. And when it serves the other, it’s “weaponized”? For fuck’s sake, Liptak.
On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.
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Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”
Justice Kagan wrote this in her dissent in the Janus case, complaining of the majority’s failure to adhere to the concept of stare decisis and overruling Abood.
There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.
It was a poor, if fashionable, way to express her position. What she did not say is what Liptak says.
The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.
Free speech was glorious when it served to further the agenda of one tribe, but when they pushed beyond its limits to accomplish by lawfare what it failed to achieve through the legislative process, it turned dark, ugly and . . . conservative?
Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.
Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.
The First Amendment didn’t change. All the same words are there, as before. Free speech didn’t change. All the same arguments and rationales remain. What changed is the rhetoric of the left, from civil liberties to “harms it can inflict.” Who does Liptak turn to explain this?
“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
What exactly constitutes a “more just society,” one that achieves fantasy outcomes or one that secures liberty for all?
To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.
“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”
Not that MacKinnon hasn’t made a career of espousing irrational nonsense, but Liptak offers her vision of free speech only for people and purposes she favors? Of course free speech can “reinforce and amplify” injustice. And justice. And everything in between. And whether it’s injustice or not isn’t left to MacKinnon, or Liptak, to decide for the rest of us.
Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she said, should brace itself.
“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”
Citizens’ choices aren’t reflected in the nuttery of Catharine MacKinnons, and are outside the jurisdiction of black-robed rulers. The Supreme Court’s burden is to protect the constitutional rights of all, and efforts to re-engineer freedom to align with “a more just society” is precisely what the First Amendment, what our Constitution, exists to prevent.
It seemed that Liptak understood this and appreciated that the protection of civil liberties would be enforced against whichever side was trying to undermine them. No longer.
*As much as you may disagree with the judicial philosophy, the interpretative perspective, the inherent value judgments, of justices of the Supreme Court, what you cannot legitimately do is deny their integrity. Even Clarence Thomas, arguably the least accomplished of the justices and the most dubiously qualified for the post, deserves better than to be denigrated. You can disagree with him about everything (Sam Alito, too), but to deny his integrity because he’s “so awful” is wrong.