On an ordinary day, Chief Justice John Roberts asks pointed questions of counsel and brief-slaps them if their answers don’t measure up. He also acts as kindergarten cop when his colleagues all speak at once. He is a formidable presence on the bench.
Except Wednesday during oral argument in McCullen v. Coakley, the Massachusetts case testing whether a state can establish a 35-foot “buffer zone” around clinics offering abortions so that patients can get inside without fighting their way through pro-life and pro-choice demonstrators.
There are two possible meanings to the chief’s silence. One is that he is genuinely undecided about a case that pits the rights of pregnant women against the rights of protest and advocacy on a public sidewalk.
That one’s not likely. Hamlet John Roberts is not. That’s particularly true in the First Amendment context, where he usually sides against government restrictions on speech.
So the more likely inference is that his mind is made up and nothing either lawyer could say Wednesday was going to change it. If that’s the case, then the Massachusetts law is doomed. It was easy to count four votes against it: Justice Antonin Scalia, who regards the statute as an attack on loveable old people who go to clinic sidewalks “to comfort these women”; Justice Anthony M. Kennedy, who is a near-absolutist on any government restriction of speech; Justice Samuel A. Alito, who suggested that the law was aimed at suppressing the pro-life viewpoint while allowing pro-choice clinic employees to speak; and Justice Clarence Thomas, whose view of the First Amendment centers around public spaces, and who has little use for abortion. Add Roberts and it is, as Lyndon Johnson used to say, “Goodnight, Grace.”
In fact, this may not even be a polarized 5-4 situation. Justice Elena Kagan repeatedly brought up the size of the Massachusetts “buffer zone.” “I guess I'm a little bit hung up on why you need so much space,” she told Jennifer Miller, who argued for Massachusetts.
Justice Ruth Bader Ginsburg seemed inclined to uphold the law. So did Justice Stephen Breyer. It is very hard, Breyer suggested, to write a law that would spare Scalia’s kindly seniors while restricting the protesters who, the record shows, deliberately blocked clinic entrances, shouted, and shoved and thrust their heads into car windows outside the clinics. “The obvious reason for a legislator, I think -- I did work in the legislature for a while as a staff member --that you don't write these fine statutes is they won't work,” he suggested to Miller. “They have too fine a distinction.”
And the Massachusetts statute is sure enough broad. It forbids “knowingly enter[ing] or remain[ing] on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet” of any entrance or driveway. The only exceptions are the actual patients, employees of the clinic “acting within the scope of their employment,” police officers, and citizens walking by “solely for the purpose of reaching a destination other than such facility.”
To begin with, public sidewalks are pretty much presumed to be free-speech areas. Even the Supreme Court itself, which primly forbids protest on its steps, has held that the public sidewalk in front of the Court must be open for pickets or demonstrators. For another, the ban sweeps in a lot more than boisterous, threatening, or obstructive protests. The challengers in this case, as Scalia said, are nice old people. And in case I just triggered the condescension police, that’s basically how they describe themselves. In their brief, they insist they only want to engage in “close, kind, personal communication, with calm voices, caring demeanor, and eye contact.” If obstruction of clinics is a problem, they argue, surely Massachusetts could pass a statute punishing those who obstruct, leaving the calm and caring to carry on activities protected by the First Amendment.
Massachusetts responds that the law is not about obstruction but about congestion that even unintentionally blocks access to the clinics. “You have so many people there, the bad actors and the good actors,” Miller said. “You have so many people congested in the same space from all points of view that it effectively blocks the door.”
Another troublesome detail is the size of the buffer zone. The justices seemed to be under a good deal of confusion about 35 feet. Justice Scalia suggested that it was roughly the distance from his seat on the bench to the front row of spectators. Justice Kagan suggested that “it’s from this bench to the end of the court ... It’s pretty much this courtroom, kind of.” Justice Alito also suggested that the zone was “as big as this courtroom.”
Finally, neither the parties nor the judges could agree on what the statute even governs. Is it a neutral regulation of “the time, place, and manner” of speech—akin to a rule that says “No rock concerts in the park near the convalescent home”? Or is it a “viewpoint-based” statute designed aimed at gagging the pro-life camp? Mark Rienzi, lawyer for the challengers, described it as a “distortion of the marketplace of ideas” that clinic employees speak to entering patients while silencing pro-life demonstrators. The state claims that “within the scope of their employment” does not allow employees to discuss the abortion choice with patients; Justice Alito, by contrast, posed a hypothetical in which a clinic employee says, “this is a safe facility,” a pro-life counselor disagrees—and the pro-life counselor is arrested.
Finally, as good judges should, the justices fretted about cases yet to come. Justice Alito repeatedly asked whether a state could pass similar laws to protect fraternal lodges, or sites of labor disputes. Justice Kagan asked whether a state could create buffers around slaughterhouses if they became the targets of animal-rights protesters.
But there is one hypothetical that isn’t really hypothetical: military funerals. Under § 601 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, protesters can be sent to prison for a year if they come within 500 feet of a funeral and make “any noise or diversion” that purposefully “disturbs or tends to disturb the peace or good order of such funeral.” Justice Sonia Sotomayor asked Rienzi, “So protestors like the one we had in the Snyder case at a funeral of a veteran can go right up to the public sidewalk outside the church and put up the signs that they did and give out the leaflets that they did, talking about that veteran in the ways that they did?”
Rienzi responded that a law could outlaw “acts that disrupt the peace and good order of a funeral,” while the Massachusetts law outlawed “consensual conversation, quiet conversation.” Justice Scalia—evidently thinking a case or two ahead—tried to distinguish the funeral situation as well. “In Snyder, they were held not so far back that their shouts and protests couldn't be heard,” he said. (Not exactly true: The Westboro Baptist protesters in Snyder were kept 1,000 feet away, and the fallen soldier’s relatives did not become aware of the demonstration until they saw it on TV.) Anyway, Scalia reminded his colleagues, these are nice ladies with calm and caring voices: “If it was a protest, keeping them back 35 feet might not be so bad.”
It’s striking that the outcome of the case will likely hinge on the justices’ opinions about whether 35 feet are too many for a buffer. This Court seems singularly ill-equipped to judge that distance. Remember Alito and Kagan arguing that the zone was the size of the courtroom. In point of fact, according to the Supreme Court’s website, “This dignified room measures 82 by 91 feet and has a 44–foot ceiling.” That means it is 2.3 buffers wide, 2.6 buffers long, and 1.25 buffers high.