Has Hill v. Colorado Already Been "Abandoned" Like Lemon?

Did Kennedy v. Bremerton overrule the precedent on precedent from Rodriguez de Quijas?

Justice O'Connor once explained that "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion." (I think a similar principle applies to the Eighth Amendment; more on Glossip later.) In the lead-up to Dobbs, I listed a host of precedents in which the law was distorted to protect Roe. One such case was Hill v. Colorado. The Court upheld a "buffer" zone around an abortion clinic, which prevented people from expressing pro-life views. Hill was always inconsistent with the Court's other forum cases, but abortion was just too important.

In the wake of Dobbs, there have been several petitions urging the Court to overrule Hill. Indeed, local governments have attempted to manipulate the Court's jurisdiction to save the precedent. (I'm looking at you Westchester County!) But the Court has continued to deny those petitions.

Yesterday, the Supreme Court denied yet another case that sought to overrule Hill. In Coalition Life v. City of Carbondale, Justice Alito would have granted the petition, and Justice Thomas wrote a lengthy dissent from denial. Thomas repeated his usual refrain that Hill distorted First Amendment principles, and it is difficult to see what is left of Hill after Dobbs: "Hill's abortion exceptionalism turned the First Amendment upside down."

But Justice Thomas added a new spin on things. He explained that Hill has been eroded by recent cases, including McCullen v. Coakley, Reed v. Town of Gilbert, City of Austin, and (of course) Dobbs. Thomas writes, "If Hill's foundation was 'deeply shaken' before Dobbs, see Price, 915 F. 3d, at 1119, the Dobbs decision razed it." (Price v. City of Chicago was a Seventh Circuit decision by Judge Sykes, that then-Judge Barrett joined).

Thomas then draws an analogy between Hill v. Colorado and Lemon v. Kurtzman:

This trajectory calls to mind the story of Lemon v. Kurtzman, 403 U. S. 602 (1971), which had created a three-part test to determine whether a law violated the Establishment Clause. While this Court had not by any one statement overruled Lemon, for many years it either "expressly declined to apply the test" or "simply ignored it." American Legion v. American Humanist Assn., 588 U. S. 29, 49 (2019) (plurality opinion) (collecting cases). We were never shy about Lemon's "shortcomings" and "daunting problems." 588 U. S., at 49, 51. And, we eventually faulted lower courts for failing to notice that the "'shortcomings' associated with th[e] 'ambitiou[s],' abstract, and ahistorical" Lemon test had "bec[o]me so 'apparent' that this Court long ago abandoned" it. Kennedy v. Bremerton School Dist., 597 U. S. 507, 534 (2022) (second alteration in original). In other words, we explained, Lemon had long been dismantled by our precedents, and lower courts should have recognized its demise. Given that prior to Kennedy, a decision of the Court had never outright condemned Lemon as a "distort[ion]," Dobbs, 597 U. S., at 287, and n. 65, Hill's abandonment is arguably even clearer than Lemon's.

Woah! Should courts recognize that Hill v. Colorado has already met its demise? Does Justice Thomas think that lower courts now have a green light to treat Hill v. Colorado as "abandoned"? To be sure, Rodriguez de Quijas v. Shearson/American Express Inc. (1989) suggests that the answer is clearly no: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." But did Kennedy v. Bremerton abrogate Rodriguez de Quijas? To be sure, plenty of Courts disregarded Baker v. Nelson in the wake of Windsor, but the precedential value of Baker was always questionable from the outset. In any event, I think Dobbs demonstrated that precedents on precedent are not entitled to stare decisis value. So maybe the Court has moved beyond Rodriguez de. Quijas?

Of course, Justice Thomas wrote a solo dissent. No one joined him. Even Justice Alito, who would have granted the petition, did not join Thomas's opinion.

I think it is unlikely the Court will ever formally overrule Hill. Despite Thomas's appeal to Justice Barrett, she did not budge. And really, is there any doubt why the number of summary reversals, as well as cert grants, are down? It is Justice Barrett. I made this point nearly a year ago:

Justice Kavanaugh, by contrast, has signaled that he is more open to cert grants. I've taken notice of the random dissents from denial of cert on the order list for low-profile cases. Those dissents show that he carefully scrutinizes all of the petitions, and is looking for issues to grant. By my count, Barrett has only dissented from the denial of certiorari once in Waleski v. Montgomery, McCracken, Walker & Rhoads (2023). This case presented a nerdy FedCouts question about "hypothetical jurisdiction"--not exactly something of national importance. (She joined Justice Thomas's dissent, along with Justice Gorsuch.) In most cases, if Barrett is willing to grant, there are almost certainly three more votes to join her.

See also this post.

Nothing has changed since 2024.

Comments

[Recondite Dabbler]

A court could, though not without some gumption, rule differently on another state's statute, distinguishing Hill v. Colorado on the grounds that the statute is different and in a different state. We don't typically endorse inferior courts acting in such fashion (cue the familiar dichotomies between the law-declaration model and the dispute-resolution model of precedent and judging, as well as holdings vs. dicta). But we recognize the same idea for other actors (e.g., Lincoln's opinion on Dred Scott). The Supreme Court might then be "forced" to take up the issue squarely. It's not clear to me that a lower court would be acting improperly in doing so. Yes, lower courts cannot defy precedent. But it seems entirely within a lower court's prerogative--indeed, duty--to determine whether subsequent Supreme Court precedent has seriously cast doubt or abrogated earlier precedent. Lower courts don't have to wait for the Supreme Court to rule directly on the matter itself. If they get it wrong, the Supreme Court can reaffirm the earlier precedent.

As it is, there's often a silly conundrum where Justices will say that an issue should percolate in the lower courts but lower courts won't do much percolating or much at all where Supreme Court precedent seems to foreclose doing anything other than following suit. See, e.g., lower courts' treatment and expansion of Almendarez-Torres for years until the Supreme Court finally ruled in Erlinger.

[SMP0328]

Rodriguez de Quijas (1989): No matter how undermined is a precedent, lower federal courts are to apply it without question unless this Court expressly overrules that precedent

Kennedy v. Bremerton School District (2022): What the Hell is wrong with the lower federal courts? We shouldn't have had to expressly overrule Lemon. They should have inferred that we no longer considered it good law a long time ago.

If I was a federal judge, I would hold that the chastising from Kennedy repudiated the chastising from Rodriguez de Quijas and rule that Hill v. Colorado was implicitly overruled by the Supreme Court at least by the time Dobbs was handed down.

[Dan Schiavetta]

Good point.

[Lee Moore]

I’m guessing not overruling it is basically a public health decision.

The intersection of an offense against stare decisis and an offense against abortion, so soon after Dobbs, would likely result in poor Justice Kagan having an aneurysm.

[CJColucci]

The "rule" of Rodriquez de Quijas is, essentially, toothless when a lower court guesses right. At worst you get a mild scolding.

[Frank Drackman]

We have a “Lemon Test” in Medicine, it’s just a little different than the Legal one

[ReaderY]

I think that the picketing of several Justices’ homes in the period when Dobbs came out, and the Justices’ efforts to get rid of the picketers, are going to make the Justices think twice about making picketing of “private” areas easier.

It may be that abortion can’t be singled out uniquely. But restrictions on “private” picketing are likely to stay, likely including hospitals and convalescent homes. And that means a state that wants to will likely be able to craft a statue that includes at least most abortion clinics in its general definition.

[Bob from Ohio]

" picketing of several Justices’ homes in the period when Dobbs came out, and the Justices’ efforts to get rid of the picketers, are going to make the Justices think twice about making picketing of “private” areas easier."

Well, that's convenient. Pro-abortion side behaves badly and gets to intimidate the justices so abortion mills are off limits.

[A Japanese Student]

Rodriquez de Quijas was cited in Bosse v. Oklahoma, 580 US __ (2016) (per curiam), which held that Booth was not actually fully overruled by Payne. There were some more cases where the lower court plainly flouted precedents (Moore v. TX, June Medical), but they didn't overrule one.

As to the merits of Hill: banning protests near abortion clinics is a classic example of time-place-manner restriction. It does not reference the contents of the speech; it is the same as banning protests inside university campuses, Capitol grounds, or in the middle of an interstate highway - even if they tend to attract certain speakers. If the restrictions are unreasonable, then intermediate scrutiny can still provide relief, as in McCullen.

[Rev. O.T. Medal]

Agreed. There is nothing unique about abortion clinic buffer zones. They are directly analagous to the buffer zones around polling places. According to the bipartisan National Conference of State Legislature, "Each state has some form of restriction on political activities near polling places when voting is taking place, such as limiting the display of signs, handing out campaign literature or soliciting votes within a pre-determined distance (typically 50 to 200 feet) of a polling place."

[wvattorney13]

Except that banning abortion protests near a clinic is almost the definition of a content based restriction whereas the other examples are all content neutral.

On the merits, I don't see how Hill could possibly survive Dobbs. As abortion is no longer a constitutional right, much of the force behind the decision simply evaporates.

[Please, Daivd, Seek Help]

It continues to be a flaw in U.S. institutional design that there are no legal mechanisms for any kind of reference or advisory case to be considered by the court.

I am sure courts of appeal routinely follow the internal logic of "If X is controlling, then our answer is A. If X is not controlling, then our answer is B. We think X is controlling" and it seems patently absurd that the intended way to deal with situations like that is for the court to issue a legally binding opinion on the assumption they're right, which is then subsequently vacated after a briefed appeal if they're wrong, rather than allowing the court to refer the much narrower question for an advisory vote of the Supreme Court and getting the decision "right" (from the perspective of the Supreme Court) the first time, saving everyone time and resources.

[A Japanese Student]

Lower courts can certify questions to SCOTUS, but no judge (except maybe a few in CA5) remembers how to do it. It's been decades since the last certified question was accepted.

[CJColucci]

Trial courts exist to settle disputes. Courts of appeals exist to correct errors. The Supreme Court exists to settle issues of systemic or otherwise exceptional importance. As a matter of numbers, it couldn't work any other way. The odds that after two levels of judicial review the case will have been wrongly decided in a way that another level of review could correct are slim. Allowing courts of appeals to punt to the Supreme Court for "advice," whether based on a largely hypothetical question on a slim record or on a full appellate record, would soon overwhelm the Supremes.

[not guilty]

Leaving aside the legal issues, I have long been puzzled as to why demonstrators outside of family planning clinics believe their work is effective. By promoting contraception, these clinics have prevented more abortions than an army of "sidewalk counselors" has ever dreamed of.

How does anyone outside the clinic claim to know whether a patient is there for an abortion (a small fraction) rather than other services?