The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
First, Justice Kavanaugh faults Justice Breyer's "scholarly separate opinion." The plurality argues that Justice Breyer in fact seeks to overrule "longstanding" First Amendment precedent:
In his scholarly separate opinion, JUSTICE BREYER explains how he would apply freedom of speech principles. But the Court's longstanding precedents, which we carefully follow here, have not adopted that approach. In essence, therefore, JUSTICE BREYER argues for overruling several of the Court's First Amendment cases, including the recent 2015 decision in Reed v. Town of Gilbert (2015). Before overruling precedent, the Court usually requires that a party ask for overruling, or at least obtains briefing on the overruling question, and then the Court carefully evaluates the traditional stare decisis factors. Here, no party has asked for overruling, and JUSTICE BREYER's opinion does not analyze the usual stare decisis factors. JUSTICE BREYER's opinion therefore discounts both the Court's precedent and the Court's precedent on precedent.
Justice Breyer countered that the precedent is far from settled:
Moreover, it is no answer to claim that this Court's precedents categorically require such an analysis. Our First Amendment jurisprudence has always been contextual and has defied straightforward reduction to unyielding categorical rules. The idea that broad language in any one case (even Reed) has categorically determined how content discrimination should be applied in every single context is both wrong and reflects an oversimplification and over-reading of our precedent. The diversity of approaches in this very case underscores the point that the law here is far from settled.
If I read Breyer correctly, the Court's First Amendment's jurisprudence is so context-specific that we do not actually have any First Amendment jurisprudence. Instead, Breyer argues, we should look to First Amendment "values." OK. Justice Kagan, who has made stare decisis her defining cause, must have had some trouble joining this paragraph. Maybe the Chief can identify substantive due process "values." That analysis will make post-June cases far easier to decide.
Justice Kavanaugh also wields stare decisis to critique Justice Gorsuch's separate opinion. Justices Gorsuch wrote:
Respectfully, if this is what modern "severability doctrine" has become, it seems to me all the more reason to reconsider our course.
The plurality says Gorsuch is wrong to reconsider long-standing precedent concerning severability. Why? Because John Marshall.
JUSTICE GORSUCH suggests more broadly that severability doctrine may need to be reconsidered. But when and how? As the saying goes, John Marshall is not walking through that door.
Huh? I've never heard that saying. I googled "John Marshall is not walking through that door." There are zero results before today. Instead, I think Justice Kavanaugh is alluding to an infamous 2000 press conference with Rick Pitino, who briefly served as coach of the Boston Celtics::
"Larry Bird is not walking through that door, fans. Kevin McHale is not walking through that door, and Robert Parish is not walking through that door," Pitino said of the Big Three that won three NBA titles in the 1980s. "And if you expect them to walk through that door, they're going to be gray and old. What we are is young, exciting, hardworking and going to improve. People don't realize that. And as soon as they realize that those three guys are not coming through that door, the better this town will be for all of us.
Comparing John Marshall to Larry Legend? Give me a break. Justice Kavanaugh is trying way too hard here. The line failed. Regrettably, judges are going to cite that statement as if it were an actual saying about stare decisis, without any knowledge of its context.
And this Court, in this and other recent decisions, has clarified and refined severability doctrine by emphasizing firm adherence to the text of severability clauses, and underscoring the strong presumption of severability. The doctrine as so refined is constitutionally well-rooted, see, e.g., Marbury v. Madison, 1 Cranch 137 (Marshall, C. J.), and can be predictably applied. True, there is no magic solution to severability that solves every conundrum, especially in equal-treatment cases, but the Court's current approach as reflected in recent cases such as Free Enterprise Fund and Seila Law is constitutional, stable, predictable, and commonsensical.
Give me a bigger break. Marbury did not establish modern severability doctrine. Sure, Marshall did not strike down the entire Judiciary Act of 1789. But so what? The Court found that it lacked authority to issue the requested remedy (mandamus), because Congress could not expand its original jurisdiction. What we would today call "severability analysis" was irrelevant in Marbury. Seriously. As a general matter, if you need to cite Marbury to support your argument, your argument lacks sufficient support.
The entire notion of "invalidation" is a modern construct--one that Kavanaugh only partially rejects. And severability doctrine does not lead to "predictable" and "stable" results. The purposivist inquiry is a total crapshoot. I'll address severability in the fourth installment. But here Kavanaugh overreached.