THE STATEMENTS AT ISSUE:

“The Justice Department’s decision to treat routine news-gathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press.”

– Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement issued May 21 that was quoted in various news stories, regarding an FBI document filed in court to justify a search warrant of emails of Fox News reporter James Rosen. The document suggested that Rosen may have acted “at the very least, either as an aider, abettor and/or co-conspirator” with an official who allegedly leaked secret information to Rosen.

“To treat a reporter as a criminal for doing his job—seeking out information the government doesn’t want made public—deprives Americans of the First Amendment freedom on which all other constitutional rights are based.”

– Dana Milbank, Washington Post columnist, in an op-ed article on May 22, titled “Criminalizing journalism.”

“If you’re asking me whether the president believes that journalists should be prosecuted for doing their jobs, the answer is no.”

– White House Press Secretary Jay Carney, in a briefing for reporters on May 21, quoted in various news stories.

WE CHECKED THE CONSTITUTION, AND…

Long ago, America’s press and government officials worked out a rough bargain under the First Amendment: The press would be free to publish information that the government would prefer to be withheld, but the government would retain the option of trying to punish those who leaked such information illegally.

The bargain has generally meant that reporters would not themselves be prosecuted as criminals for publishing unauthorized leaks, but that they could be investigated and, indeed, might even have to go to jail if they refused to identify their sources. It is an understanding that has left both sides not entirely trusting of each other.

What has stirred even greater distrust in recent days was the revelation that the FBI was treating a Fox News reporter as a potential subject of criminal prosecution, at least for purposes of a formal request to a judge for a search warrant in a sweeping investigation of the source of leaks to the reporter about North Korea’s missile program.

Reporters, of course, have gone to jail for refusing to obey court orders that they had to disclose sources of stories that the government was investigating to find the source. But, so far as anyone can remember, no reporter has ever been charged with a crime for publishing a leaked bit of information, even of the most sensitive national security data. That is what the FBI affidavit in the case of James Rosen seemed to suggest, although the White House press secretary has now sought to head off such speculation.

Most of the recent investigations by the government in high-profile news leak cases have involved the publication of information about national defense or national security, and there is no doubt that some officials in the government believe that the Espionage Act, which makes it a federal crime to release classified data, also applies to the conduct of the press in publishing such data. But that is a view that has never been supported by a majority of the Supreme Court.

In fact, in the famous Pentagon Papers decision in 1971, two members of the court—Justices William O. Douglas and Hugo L. Black—said explicitly that the Espionage Act does not apply to the press in any way. Whether or not that represented a majority view then or since, it is an understanding that has generally led prosecutors not to try to bring criminal charges against reporters or publications that printed classified information.

But the Supreme Court has also made clear that the First Amendment does not give the press a constitutional right to print classified information. Less than a year after the Pentagon Papers ruling, the Supreme Court said in the case of Branzburg v. Hayes that “it has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”

Elsewhere in that same decision, however, the court said it was not suggesting “that news gathering does not qualify for First Amendment protection,” and it added that “without some protection for seeking out the news, freedom of the press could be eviscerated.” The court elaborated on that somewhat, eight years later, in the case of Richmond Newspapers v. Virginia.

In that decision, the court ruled that the press shared with the public the right to sit in on government meetings or court sessions—so long as those traditionally had been opened to the public. The court, however, has never spelled out fully just what it meant by saying that the First Amendment provided “some protection for seeking out the news.”

Clearly, the prospect of facing criminal charges for “seeking out the news” about some classified government program or activity would be seen by the press as a threat to its news-gathering operations.

Whether such a threat ever will arise, no one can know at this point. On that, the press may have to wait until, perhaps some day, an adventuresome prosecutor decides that a reporter did act as a “co-conspirator” or as an “aider or abettor” to a leaker of such information, and attempted to pursue a criminal charge along those lines. That is not a day, however, to which the press ought to look forward eagerly; the outcome would not be predictable, whatever past experience has shown.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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THE STATEMENT AT ISSUE:

“Recognizing the potential danger to conscience rights posed by government oversight of worship practices, this court has repeatedly cautioned against government control of prayer content. The adoption of an endorsement test effectively nullifies this line of precedent. An endorsement test requires courts to play the role of theologian, making judgments about the prayers’ validity based on the supposed religious effect they are likely to have on observers.”

– Attorneys for the town of Greece, New York, in appeal papers asking the Supreme Court to rule on the constitutionality of opening the local governing body’s public meetings with prayers recited by local clergy. The court on Monday accepted the case for review at its next term starting in October.

WE CHECKED THE CONSTITUTION, AND…

Since 1962, the Supreme Court has been quite consistent in the constitutional view that prayer is a form of religious devotion that belongs in private settings—the home or the worship center—not in the halls of government. It broke with that consistency some 30 years ago, when it allowed prayer with decidedly religious content to be recited by a paid chaplain at the opening of a state legislature’s sessions. It said that was different, historically. After that, its skepticism about official prayer returned and has continued.

On Monday, the court signaled its willingness to reopen the entire issue of prayer in the public sphere, as a question under the First Amendment’s Establishment Clause. Just as the  justices have slowly grown more tolerant of government displays of the 10 Commandments, especially if those exhibits have been in place for many years, they may now be pondering a greater acceptance of official prayer—if it occurs in a setting where most of the audience is made up of adults.

A defining feature of most of the court’s rulings against prayer rituals is that they have come in the public school setting, where the audience is composed of impressionable youngsters. What has emerged in the most recent rulings—a decision in 1992 against officially sponsored prayers at a public middle school graduation, and a 2000 decision against such prayers at a high school football game—is the court majority’s concern that younger students may be coerced into conforming to a dominant religious theme, and, if they are of a different faith (or of none), will feel isolated and hurt.

In a word, that reaction reflects the fear of coercion—that is, the government sending the message to go along with religious dogma. The coercion theory under the Establishment Clause has been most identified with Justice Anthony M. Kennedy.

There is a rather subtle difference between that theory of coercion and another theory that the court has sometimes used in trying to keep religion and government separated: the theory of endorsement. That theory is closely identified with the work of retired Justice Sandra Day O’Connor.

That, too, is about government sending a message: When government appears to be sponsoring a creed linked to one faith alone, it is said to be passing the word that this is essentially the official religion. Appearances count more under that theory than they do under coercion theory, which involves the implied taking away of choice.

When the court agreed to hear the new prayer case from the city of Greece, New York, a community of about 100,000 people near Rochester, it stepped into a case in which a prayer practice at the opening of the town board meeting was struck down by a lower court using the endorsement theory. And, by granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.

Here is the way the appeals court summed up its ruling in the Greece town board case: “Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.” What is forbidden, it went on to say, is a prayer practice that expresses “an official town religion.”

It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.

That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.

It would have been easy enough for the court to have passed up the Greece town board case, and stayed on the sidelines of the prayer controversy as it has for the past 13 years. It very well may mean something that it has decided to return to the fray, in a case where the appeal is so heavily focused on a challenge to the entire endorsement theory against official prayer.

In coming months, this case is sure to draw a heavy involvement by outside groups of many different persuasions, seeking to shape where the court goes from here on prayer.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

– Jay Timmons, president and CEO of the National Association of Manufacturers, in a statement quoted in The New York Times May 8 in response to a federal appeals court decision striking down a requirement by the National Labor Relations Board that some 6 million companies display in their workplaces a poster telling workers of their rights to unionize.

“In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court’s rulings suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages, and many other areas.”

– Richard Trumka, president of the AFL-CIO labor union federation, in a statement quoted in the same The New York Times article May 8.

We checked the Constitution, and …

For generations, the First Amendment’s Free Speech Clause has been a battleground between companies and labor unions over how they communicate with workers about the issue of joining a union to bargain over workplace benefits. Recently, in the background of that struggle has been the reality that labor unions are continually losing popularity. In January, government figures showed that the rate of union membership in the U.S. was at its lowest level since 1916, and the decline is especially severe in private sector workplaces.

That trend, in fact, was a key factor in the National Labor Relations Board’s decision in 2011 to require employers whose dealings with employees are governed by the federal labor law that dates back to 1935 to put up an 11-by-17-inch poster telling workers about their rights. Declining union membership, the board found, was due in part to the fact that workers did not know their rights, and so should be told about them and told how to enforce those rights.

The board’s poster rule told workers that they had a right to form, join, or assist a labor union, a right to bargain collectively through a union, a right to discuss workplace benefits and conditions with other workers and with a union, a right to take action to improve working conditions, a right to strike and picket, and a right to choose not to engage in any of those activities.

The fight over that rule is a modern-day echo of past disputes arising out of NLRB attempts to police the workplace, when management associations complained in the courts and to Congress that the board had “pushed the labor relations balance too far in favor of unions,” as the Supreme Court described those complaints in a ruling five years ago.

That decision, in fact, noted that the Supreme Court as long ago as 1941 had recognized “the First Amendment right of employers to engage in non-coercive speech about unionization.” In other words, they were free to talk to their employees in ways that sought to discourage them from joining unions, so long as that was done without threats of reprisal or coercion. Congress, in fact, wrote that guarantee of employer free speech into labor law in 1947, in what is called the Taft-Hartley Act.

The Court of Appeals for the District of Columbia Circuit, in its ruling this month striking down the NLRB’s poster requirement, relied on that provision, but also gave what appeared to be an expanded interpretation of the First Amendment as it applies to employers’ speech rights.

The appeals court turned to Supreme Court rulings outside the workplace context: one that barred  a state from requiring motorists to put a state-approved slogan on their license plates, and another forbidding a school district from requiring students to salute the American flag even if that violated their religious beliefs.

The NLRB, the court said, was actually trying to force employers to deliver the NLRB’s own message as if it were their own–a form of compelled speech that the First Amendment forbids. The court noted that the challenging employer groups had argued that the poster was not neutral at all, but rather was strongly slanted in favor of unionism:

“Like the freedom of speech guaranteed in the First Amendment, [federal labor law] necessarily protects–as against the board–the right of employers (and unions) not to speak.”

Finding that nothing of the enforcement mechanisms the board had adopted to compel companies to put up the poster were allowed by labor law, the appeals court struck down the rule.

This dispute over the poster rule, of course, comes against a broader background of increasing management objection to what the National Association of Manufacturers has called the “rogue” behavior of the NLRB. The resistance to the board has spread to the Senate, with filibustering of appointees to the board, and by objections to President Obama’s appointments to the board to serve temporarily when the Senate was not in session to review those appointments.

The president’s lawyers have now taken to the Supreme Court the constitutional fight over his recess appointments to the board, and the court is likely to rule on that at its next term starting in October.

Whether the poster rule fight also goes on to the Supreme Court has not yet been decided. The board has said it is considering what to do next.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“The American people deserve answers about how such seemingly unconstitutional and potentially criminal behavior could occur, and who else was aware of it throughout the Administration.”

– Senator Marco Rubio, Florida Republican, in a letter Monday to Treasury Secretary Jack Lew, calling for the Treasury’s “full cooperation with all investigations” of the scandal involving the Internal Revenue Service’s actions in making it tougher for specific ideological organizations to gain tax-exempt status under federal law.

“If the initial reports are verified, it is breathtaking that the IRS seems to be harassing mom & pop tea party organizations while ignoring what appear to be blatant abuses of the tax status right under its nose by groups pumping tens of millions of dollars into partisan political advertising.”

– J. Gerald Hebert, executive director of the Campaign Legal Center, an advocacy group promoting election finance reform, in a statement on Monday reacting to the scandal.

We checked the Constitution, and…

It is a core constitutional principle that the federal government cannot use its awesome powers—over taxes, or anything else—to single out groups because of their political views and treat them more harshly. That violates their rights of free speech and free association under the First Amendment, and their rights against arbitrary government action under the Fifth Amendment’s Due Process Clause.

But, even as the IRS scandal over the tax-exempt status of tea party–related political groups stirs widespread criticism, it may be harder to keep in mind also that, constitutionally, no group in America has a right to be exempted from taxes. A right to equal treatment by the IRS is not the same thing as a right to an exemption.

Someone within IRS, acting properly and within the law, has to make a decision about whether a group can qualify for an exemption from paying federal taxes. And the law is quite clear that organizations that are set up to do charitable work are not allowed to get or keep tax-exempt status if they are actively engaged in political campaign activity, or in lobbying Congress. If an organization is set up to promote a particular policy agenda, benefiting the “general welfare” of the people, however, it might qualify for tax-exemption even if it does some lobbying related to its policy goals, but it might risk that status (or be denied it in the first place) if its political actions become its “primary activity.”

As is obvious from such a general summary, someone has to interpret when an organization seeking to be relieved of paying taxes is doing too much or the wrong kind of lobbying or politicking.

The IRS has been immersed in controversy for years about how it enforces the limitations that do exist. The new scandal, of course, is a very different controversy, because it involves claims of a serious abuse of government power, not of inaction or administrative agency laziness. But the new scandal will only intensify the already insistent demands that the IRS do something to reform its tax-exempt review process.

The IRS, for example, still has not resolved complaints that it has hesitated to monitor the kinds of political activity in which the new super PACs can engage and still obtain or retain an exemption. That issue was stirred up by the actions of scores of PACs in last year’s presidential election, and the IRS has yet to indicate what it will do—if anything—about that.

While lawyers for 10 tea party groups with exemption requests pending asked the IRS on Monday to immediately grant those requests, or else face legal action, it is not clear that the new scandal itself must necessarily lead the IRS to do so. Again, while any IRS review of a pending application would have to be done within the rules and without discrimination, past misconduct by that agency does not translate into a mandate to start granting exemptions in batches to victims of its prior abuses.

Obviously, a lawsuit filed on behalf of any group still awaiting a response from the IRS is sure to make the point that each such group is a victim of the scandal, and the only proper remedy for that is an exemption, granted without delay. But each court reviewing such a legal claim will take the time to determine if a particular group has made the connection. Even if a court finds that a specific entity was victimized, that would not necessarily lead to an order for an exemption. That is an issue of tax law that has to be sorted out organization by organization. A court might order the IRS to give a group a fair hearing, but might not tell it to grant a specific exemption without proof that it actually satisfied the legal standards.

And there is another legal obstacle that any such lawsuit might have to overcome. Ordinarily, a court will not review an IRS order dealing with the exemption question until after such a request has been formally denied. That is the kind of final action that could set judicial review in motion. The mere fact that a request remains pending would not mean it had been denied.

At this stage, it seems most likely that the scandal will unfold primarily within the political branches of the federal government, with hearings in Congress to establish what went wrong and who was responsible, and with efforts in the executive branch to order some reforms without waiting for the possibility of new legislation curbing the IRS’s review powers.

There will be constitutional complaints, of the kind that Senator Rubio made in his letter to the Treasury on Monday, but it could be some time before firm answers are available on whose rights were actually violated. Initially, though, that is most likely to be a judgment that is made politically rather than judicially.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statement at issue:

“As happy couples and their loved ones celebrate and prepare for the first weddings in Delaware—following the win in Rhode Island just a few days ago—this milestone sends yet another message to the Supreme Court that it’s time for marriage for all Americans. … We look forward to surging forward and continuing the momentum in Illinois and Minnesota later this month.”

 – Marc Solomon, national campaign director of Freedom to Marry, an advocacy organization promoting same-sex marriage, in a press release May 7 after the Delaware legislature gave final approval to a marriage equality bill.  The governor quickly signed it into law.

We checked the Constitution, and…

If the Constitution takes at least part of its meaning from the way elected officials react to a high-profile public policy issue, the supporters of same-sex marriage have reason to be optimistic right now. In the space of less than a week, Rhode Island and then Delaware became the 10th and 11th states to allow gay marriage (along with Washington, D.C.). But is that a trend that the Supreme Court is ready to advance—or will choose to leave alone to see how it goes?

It has been exactly six weeks since the justices held hearings on two major test cases on the marriage question, and what that means is that draft opinions are now actively circulating behind the velvet curtains, and voting alliances are being shaped. The focus, at this point, is very much directed inwardly: to the record of the hearings, to the stacks of legal filings, and to the comments in notes or conversations among the justices and their law clerks.

By now, one justice has been assigned the task of composing an opinion for the court in each case (probably not the same justice for both), and the other members of the court are sending brief notes indicating whether they will join that opinion, whether they will or might dissent, whether they might write separately. They are, in fact, actually trying to influence the final shape of what could become the court’s main opinion in each case—if a majority can come together on a main opinion.

And it is not difficult to imagine that one of the lines of conversation or of the written exchanges is whether the court needs to take a definite position on the constitutional questions at this point, because the legislatures are taking on the issue at an apparently increasing pace, and the trend is running strongly in favor of expanding marriage rights.

Even exchanges along that line, though, are part of the current process of trying to influence votes. An argument that the issue should be left to the political realm might cut either way. It could be used by those justices who, as of now, appear to be on the losing end because the preliminary voting pattern in one or both cases went against their view.

If the majority is moving toward embracing same-sex marriage, the political trend in that same direction is an argument for deciding the pending cases only on very narrow grounds, or for finding a way to bypass them. But if the majority is leaning against such marriages, the political trend in the opposite direction might counsel against a ruling that could signify an attempt to stifle the trend, to keep it from spreading to other states.

Such contentions might sound like political argument, but they are institutional claims. The use of judicial power is a strong instrument in a democratic society, and the court has a long tradition of trying to avoid major constitutional judgments if they are not really necessary. Although it has often been said that the court follows the election returns, a “bandwagon effect” seldom drives Supreme Court decisions on the meaning of the Constitution.

If the justices are reading the news about what is happening in the legislatures and in the political realm, and at least some of them almost certainly are, they will be aware that there is a trend, but that it is regionally limited, so far. It is not sweeping the South or the Southwest, and is largely concentrated along the Eastern Seaboard, with some potential for moving soon into the Upper Midwest. And the justices will know that, even with Rhode Island and Delaware putting the marriage equality total at 11 states, there still are 39 that have not joined in.

That information, too, might carry with it a note of caution. The majority of the court might not be ready to rule sweepingly, to turn the recent trend into a national constitutional command. A decision that the Constitution guarantees marriage equality would be binding nationwide and would, in one fell swoop, order 39 states to begin issuing marriage licenses.

Although there is obviously a great public fascination with what the court may do with the same-sex marriage issue, that does not guarantee that the justices are on the verge of a full-scale declaration for or against such marriages. The court has mechanisms available to it to dispose of the cases on less sweeping grounds, and leave the ultimate constitutional issue for a day in the future.

If the court does opt for a narrow or cautious approach, that would be a clear signal to the advocates on both sides that, for the time being, this is an issue for the political arena and the maneuvering would continue one state at a time.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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THE STATEMENTS AT ISSUE:

“Americans may disagree about what is sexually appropriate for their children. And everyone surely wishes to prevent children from having babies. But public policy should be aimed at involving, rather than marginalizing, parents. … The debate about Plan B is fundamentally about whether government or parents have ultimate authority over their children’s well-being.”

– Kathleen Parker, Washington Post columnist in an op-ed article on May 5, titled “Prude or prudent?” commenting on the Food and Drug Administration decision to make the pregnancy-preventing drug Plan B available over-the-counter and without a prescription to girls as young as 15.

“This case involves the constitutional right to obtain and use contraceptives.  The restriction on the sale of time-sensitive [Plan B] contraceptives to pharmacies and health clinics, which affects all women, implicates this right.”

– Senior U.S. District Judge Edward R. Korman of Brooklyn, New York, in a decision on April 5 in the case of Tummino v. Hamburg, ordering the Food and Drug Administration to remove all age and retail sale restrictions on the availability of Plan B pills.

WE CHECKED THE CONSTITUTION, AND…

The Constitution, of course, does not set up the federal government as a super-parent to the nation’s children, displacing their own parents. When the Constitution is understood to protect rights for children, it is not a zero-sum game: Just because children—especially teenagers—have rights, does not mean that parents must give up their own rights.

A child with rights is on the way toward becoming a better citizen—surely a goal that most parents support. And the Constitution makes room for parents to shape how their children use the rights that they have; having rights includes the opportunity to learn how to use them sensibly, and parents surely can teach those lessons.

The factual reality is that teenagers do have a constitutional right to obtain contraceptives, under a 1977 Supreme Court decision in the case of Carey v. Population Services International. In that ruling, the court took note of studies that showed that “with or without access to contraceptives, the incidence of sexual activity among minors is high, and the consequences of such activity are frequently devastating.”

Not all members of the Supreme Court have joined in what has been a steady expansion of free-standing rights for minors. Two years ago, for example, Justice Clarence Thomas wrote that “the historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children.” But that was a view that he alone expressed, in a case in which the majority recognized a right of minors to have access to video games that had violent content.

The more prevalent constitutional understanding is that children, while they are more vulnerable and impressionable and thus need substantial parental protection, may also be in need of protection by government. The more important to a child’s personal identity a constitutional right may be, the more likely courts will respect it as an independent right. That certainly has been true in disputes over a constitutional right of a minor to access to birth control, and to abortion.

A teenage girl’s interest in avoiding pregnancy, or in dealing with a pregnancy after it develops, is of constitutional dimensions, the courts have said, precisely because it is vital to her development and her chance to grow at a more measured pace into maturity. Most parents, no doubt, want that for their daughters, and a government policy that makes preventive or corrective measures more accessible is aimed at reinforcing both the girl’s interest, and her parents support for that interest.

In the Plan B controversy, two opposing views of a policy of greater access have brought out fundamentally different cultural perspectives. There are those, like columnist Kathleen Parker, quoted above, who see such a policy as almost certainly intruding on parental authority, as a government-knows-best approach. Others, even more hostile to Plan B access, argue that such access inevitably will encourage younger and younger girls to engage prematurely in sexual activity.

But on the other side, advocates of greater access to Plan B are persuaded that teens are going to enter into sexual activity at earlier ages as social trends change and not as a result of the availability of contraceptives, and that the role of government is to provide them with a means to protect themselves after they have been drawn into sexual activity.

The role of the Constitution is not to reconcile those different perspectives; indeed, the opposing views start from such fundamentally different views of government that they may not be capable of reconciliation under any circumstances.

But the Constitution might have a mediating effect between such polar opposites, if Americans were able to develop a stronger habit of seeing constitutional rights not as a relaxation of all restraint, or as an invitation to indulge whimsically in excess, but rather as a gateway toward social and civic maturity. That might start at a very simple level, perhaps as simple as having a dinner-table conversation about what it means to have rights in the first place.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“[The court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’ … Obviously the court did reach a decision and thought it had to reach a decision. It turned out that the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

– Retired Justice Sandra Day O’Connor, in remarks April 26 to the editorial board of the The Chicago Tribune, as reported in an article that day by Tribune writer Dahleen Glanton.

“We do know that she sided with the majority in the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote.  The ruling was a huge stain on the court’s reputation because it appeared to be—may well have been—blatantly partisan.”

– Andrew Rosenthal, editorial page editor of  The New York Times, commenting on Justice O’Connor’s statement, in an online column, “Taking Note,” on April 29.

We checked the Constitution, and…

Because the First Amendment provides a wide berth for free speech, especially about the way the government works, pundits—and even former judges—are entitled to rewrite history if they have a mind to do that. Both Justice O’Connor and the Times’ Andrew Rosenthal have done some of that in their comments about the Supreme Court’s decision in 2000 in Bush v. Gore, putting a constitutional end to that year’s presidential election.

Recall the factual situation on the morning after the November election: Democrat Al Gore stood to receive 267 electoral votes and George W. Bush, 246, with the 25 electoral votes in Florida undecided. To win, one candidate had to get at least 270 electoral votes. If Gore won Florida, he would have 292; if Bush won that state, he would have 271—one more than enough.

Gore had 48.4 percent of the popular vote nationwide, and Bush 47.9 percent (that total doesn’t add to 100 percent because there were four minor candidates). The uncertainty over who had won Florida’s popular vote (and thus all 25 of its electoral votes, under the winner-take-all formula) lingered for 36 days, until the Supreme Court issued its decision on the night of December 12, 2000.

When the Supreme Court ruled that further recounts of the vote could not proceed, Bush was ahead in the Florida popular vote, and when the official canvass was completed, Bush had 537 more votes than Gore—out of nearly 6 million total Florida votes between them.

Although Bush v. Gore will be debated for a long time to come, the reality is that election outcomes are decided under rules of law that govern vote-counting, and those rules routinely come into play when election-night counts turn out to be very close. No one can argue persuasively that the 2000 election was going to be settled by anything other than a legal decision. If it wasn’t to be made by the Supreme Court, it would be made by lower courts. (The only chance for a political, not a legal decision, would have been if the electoral vote count had ended in a tie and the House of Representatives would settle it; given the numbers with Florida’s 25 in play, there was no chance of a tie.)

If, as Justice O’Connor has suggested, the Supreme Court had said that it was not going to take the case, at that point rulings by the Florida Supreme Court or by a federal appeals court would have settled it, probably by allowing further recounting in Florida. It is impossible to imagine that America would have been content to let a lower court resolve what had become, for all intents and purposes, a constitutional crisis with time running out. In that circumstance, that is why there is a Supreme Court to settle constitutional meaning.

It is not clear what Justice O’Connor meant by saying that the court may have “added to the problem,” but that is a political assessment, not a judicial one. The court does get into political trouble when it makes controversial decisions, particularly on an issue as momentous as how to decide the legalities of a presidential election contest. The court’s decision did bring an end to the crisis, and however controversial that was then or may be in retrospect, Americans quickly learned to live with it.

And, whatever one may make of the presidency of George W. Bush, that history was not caused by the Supreme Court.

Many critics, including most recently Rosenthal, have suggested that Bush v. Gore stained the court’s reputation because it might have been ”blatantly partisan.” The claim of a stain is much exaggerated; the kinds of decisions that actually do sully the court’s good name are decisions that preserved slavery, saved racially segregated schools and other public facilities, and allowed imprisonment of citizens during wartime on no basis other than rampant bias and fear. Bush v. Gore does not come close to belonging in that group.

And there is no proof whatsoever that the justices who voted in the majority in the 2000 decision did so with the specific intent of assuring that a Republican would win. If they got it wrong, they got it wrong for legal reasons.

The constitutional and legal issues were fully aired, every step of the way, based on legal documents that were on full public display and on public hearings that were entirely open and were focused on the law. An accusation that a judge votes his or her political preferences is a very serious allegation, and for a federal judge might be, if proven, a valid basis for impeachment. Such a claim should not be offered as loose conjecture in an attempt to revise history.

If one is looking seriously for a real scapegoat in 2000, perhaps the constitutional culprit is the Electoral College itself.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for Supreme Court ‘repudiation’ of the Korematsu v. U.S. decision and other Japanese internment rulings.  Such repudiation, it if occurred, would be unprecedented.  An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading.”

– George F. Will, syndicated columnist, in an op-ed story in The Washington Post on April 25,”When fear trampled citizenship.”

“A public statement by the court of the repudiation of the internment cases … would fall within the court’s inherent power to ‘correct its records’ in these cases. The fact that the court has never before issued such a ‘repudiation’ statement is no bar to the authority of the justices to take such an action.”

– Peter Irons, in the essay cited by George Will.  The essay is titled “Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases,” available at this website. 

We checked the Constitution, and…

However wrong-headed, or even worse, a decision by the Supreme Court might be, either when issued or when assessed in later years, the Constitution simply does not give the justices the authority to issue public statements condemning such a past ruling. That is a political act, and it would be a direct contradiction of the limits of Article III for the court to indulge in such a public statement.

That is not to say that the court cannot show its profound disagreement with a prior ruling that it has made, but there is a way to do that without the court becoming a public critic of its own precedents. The way is to overrule an offending precedent when the occasion arises for such a decision to be tested anew.

Note that phrase: “when the occasion arises.” That, constitutionally speaking, is limited to an opportunity for the court to rule on a new case that actually involves what the court often calls a “live case or controversy” and the past ruling is claimed by one side or the other to affect or control the outcome.

The court itself has understood since its very early years that its function is to decide actual lawsuits, in which there are at least two sides in conflict and in which the legal adversaries have something real at stake. That is a tradition that the court itself established in 1793.

President George Washington, through his secretary of state, Thomas Jefferson, asked the court to provide legal advice to the president on how to interpret treaties with Britain and France about American obligations toward them during the French Revolution, when the United States was seeking to remain neutral. Politely and with an apology, the court declined to offer any advice, saying that to do so would violate the separation of powers that the Constitution requires among the three branches of the national government.

Separation of powers of the government, a concept traced to the French philosopher Baron de Montesquieu and embraced fervently by James Madison in the Founding era, was considered to be absolutely vital to prevent one branch of the government from becoming despotic. Each branch is to act as a check upon each other in order to preserve liberty, the concept holds.

Because each of the branches of the national government has grown so powerful, it may be quite easy to assume that they have very wide discretion about how they use their own grant of power. And it is perhaps easy to forget that a basic principle the Founders applied devotedly was that they were creating three branches with limited, not open-ended, authority.

Why shouldn’t the Supreme Court be allowed simply to put out what would amount to a press release, repudiating its World War II–era decisions upholding the government’s power to put citizens into detention camps out of fear that they would be disloyal during wartime? The answer is simply that a press release does not decide a lawsuit, and that is all that the court can do.

In the brief quotation above from Peter Irons’ essay, he suggested that the court had “inherent power” to “correct its records.” But the principle of separation of powers simply does not allow for unspecified and ungranted “inherent” authority by any of the branches of the federal government. “The Judicial Power of the United States”—the words that open Article III—do not confer on the Supreme Court or lower federal courts the authority to issue advisory opinions, outside of the four corners of a lawsuit.

Last year, the Justice Department learned that it had made a significant mistake in defending one of the arguments that it had used to help it win a case about immigration and deportation laws. That is precisely what happened in the World War II Japanese internment cases; indeed, the government lawyers in those cases explicitly withheld information that contradicted what they had told the court; that information only came out later.

In the incident last year, the Justice Department admitted its mistake to the court. But the court did nothing at all in response. It simply accepted the admission, and let its prior ruling stand. If a new case raising the same issue were to reach the court again, the justices might well cast aside their precedent, and cite the government mistake as its reason. But, again, that could come only in reaction to a specific case.

The constitutional reality is that the World War II Japanese-American precedents have been condemned in the only way that the federal courts can do: in the context of an actual legal proceeding. Many years after those cases were decided, two of the individuals who had been imprisoned and found guilty of violating the exclusion rules—Fred Korematsu and Gordon Hirabayashi—were allowed to challenge their convictions using a little-used but perfectly legal method, and their convictions were overturned.

Had those cases gone to the Supreme Court (they did not, because the government at the time did not appeal), that would have given the court a chance to overrule its precedents. It is not likely to have another chance like that.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“My amendment … is designed to protect the fundamental Second Amendment rights of American citizens who are traveling or temporarily away from home while they hold a concealed handgun license. … Our amendment would allow persons with concealed handgun permits be allowed to carry those weapons as they travel between jurisdictions and avoid any sort of prosecution. This does not create a national standard.”

– Senator John Cornyn, Texas Republican, in remarks on the Senate floor on April 17, describing Amendment No. 719 to the proposed gun control bill then under debate.

“Amendment No. 719 would create a public safety crisis by forcing nearly every state to recognize the concealed carry permits issued by other states, even if the permit holder could not qualify for a permit in the state to which he is traveling. … In other words, states with the weakest conceal carry permitting standards will set the national standard regardless of existing state laws.”

– Senator Dianne Feinstein, California Democrat, in remarks on the Senate floor on the same day, discussing the Cornyn proposal.

We checked the Constitution, and…

One of the most popular proposals that came closest to getting approved by the U.S. Senate last week was titled the “Constitutional Concealed Carry Act”–the amendment with Senator Cornyn as the lead sponsor. But among the amendments the Senate considered, that one might have failed a constitutional test in court.

If Senator Cornyn’s amendment had gained just three more votes, it would have been approved. It did attract 57 votes, more than a majority, but the rules in effect at the time required 60. Only one other amendment, to stop criminal trafficking in guns, was slightly more popular among the rejected amendments–with 58 votes.

For some years, not just recently, gun rights advocates have wanted assurances that they could have their guns with them when they traveled. They gained a right to travel with their guns under a 1986 law, the Firearms Owners Protection Act, but that right only extended to places where carrying the gun would have been legal anyway.

There has always been some doubt about how wide that freedom was.  The National Rifle Association has noted on its website that “many states and localities have laws governing the transportation of firearms,” and it advised travelers to “be aware of these laws and comply with legal requirements in each jurisdiction.”

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When U.S. senators were putting together proposed amendments for the new debate on gun laws this month, a number embraced the proposal that Senator Cornyn sponsored. The purpose of that appeared clearly to preempt–that is, override–any state or local laws that imposed significant restrictions on the right to carry a gun into that state or into any of its cities.

This was called a “reciprocity” proposal, because the proposal provided that an individual who had a license in his or her home state to carry a concealed gun was guaranteed a right to do so only in any state that also granted licenses. But the laws of various states vary a good deal on just to whom and when a license will be issued to carry a concealed gun. So, if a state government–or a local government–had a stricter law than the one in a traveler’s home state, that tighter law would narrow the right to carry–unless, of course, a federal law trumped it.

As debated in the Senate, the Cornyn proposal specified that the right it was assuring would exist “notwithstanding the law of any state or political subdivision thereof to the contrary.” In non-technical terms, what that meant was that if a state or local law was more restrictive than the traveler’s home state on the right to carry a concealed gun, the limiting law had to yield.

When sponsors of the amendment described it, they stressed that it would not set a national standard. When opponents described it, they stressed that it would make the most permissive law on carrying a gun apply throughout the nation.

The Cornyn proposal was based upon Congress’s authority under the Constitution’s Commerce Clause, allowing Congress to pass laws to regulate business that crosses state lines. The amendment would allow the cross-country movement only of guns that had been purchased in “interstate commerce.” That, though, would encompass virtually all guns, since few remain in the state where they were manufactured.

But in a 1995 Supreme Court decision, striking down the federal Gun-Free School Zones Act, the justices curtailed Congress’ power to use the Commerce Clause as a basis for overriding local control on guns near schools. That decision, in U.S. v. Lopez, was a major rebuff to Congress’ authority to deal with gun possession at the local community level.

If the Cornyn proposal were ever to become a federal law, it almost certainly would be challenged as beyond Congress’ Commerce Clause power, because it would preempt the broad power that state governments–and their subdivisions–have to pass laws to protect public safety. Such a proposal also very likely would have been challenged as an interference with the power of states under the 10th Amendment to exercise dominant control over public safety matters.

Such challenges probably would have been met by an argument that, because the Second Amendment now protects an individual right to have a gun, Congress has authority to pass laws to protect that right.  But there is no language of the Second Amendment (unlike that in some other amendments) that gives Congress explicit power to enforce its terms, so Congress probably could only use its Commerce Clause powers to justify such a measure. That would seem to make it quite vulnerable, constitutionally.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“The police can interrogate a suspect without offering him the benefit of Miranda [warnings] if he could have information that’s of urgent concern for public safety. That may or may not be the case with Dzhokhar Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario.”

– Emily Bazelon, a columnist for Slate.com, in an article on April 19, “Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?” 

“[As of Saturday night] Authorities have not read him his Miranda rights, which include the right to remain silent and the right to an attorney. Federal law enforcement officials said they plan to use a public safety exception, outlined in a 1984 Supreme Court decision, ‘in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.’”

– Washington Post story on April 21, by reporters Joel Achenbach and Robert Barnes, “Authorities seek answers in Boston Marathon bombing.”

We checked the Constitution, and…

Some three decades ago, the Supreme Court for the first time gave police and federal agents the authority to avoid giving criminal suspects Miranda warnings about their constitutional rights, when the public safety justified that suspension. That authority, given in the 1984 decision of New York v. Quarles, has since been expanded by lower courts so that, even if a suspect has claimed the right to remain silent or the right to a lawyer, the questioning can go on if the public safety threat remains.

How long such questioning can continue, and what kinds of questions can be asked, is now the source of considerable uncertainty, as officials have developed interrogation policies they think are necessary in dealing with terrorist incidents. But one thing does remain certain: the Constitution still requires that the police not use outright coercion in order to get answers even to the most pressing questions. If authorities want to use the evidence that they gain by such questioning, that evidence must have been given voluntarily.

In the case of the 19-year-old suspected of bombing the Boston Marathon and other crimes after that, Dzhokhar Tsarnaev, there is no doubt that he has some protection under the Constitution’s Fifth Amendment against being forced to implicate himself. He is a U.S. citizen, so he has the legal shield of the Constitution. (On April 2, we discussed the rights during terrorism investigations of suspects who are not U.S. citizens; those rights may differ.)

The night that Tsarnaev was captured in Watertown, Massachusetts, the chief U.S. prosecutor, Carmen Ortiz, told the news media that the suspect would not be given Miranda warnings immediately when questioning began, and she cited the “public safety exception.”

Last year, in a bulletin to law enforcement officers across the nation, the FBI cautioned that this exception applied only to questions “directed at neutralizing an imminent threat.” It added that “once the questions turn from those designed to resolve the concern for safety to questions designed solely to elicit incriminating statements, the questioning falls outside the scope of the exception and within the traditional rules of Miranda.”

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However, under the terms of a 2010 Justice Department legal memo (criticized by Slate.com’s Emily Bazelon in her column), questioning of a terrorism suspect who has not been told of his rights may also continue even beyond concerns for the moment, in order to potentially get significant intelligence information “not related to any immediate threat.” The memo cautions that the officers conducting the interrogation should get approval from their superiors to go further into intelligence-gathering.

None of these issues that are specifically related to terrorism investigations have yet reached the Supreme Court, so federal agents and police use this added authority without knowing what the legal risks are.

There is some risk that, if the public safety exception and the 2010 Justice Department memo are pressed too far by officers in the field, they could put in jeopardy their chances of using at later trials the evidence of crime that has been gathered. The calculation thus has to be made whether to run that risk. That involves a balancing of the needs of trial prosecutors with the needs of finding out about potential future threats.

What investigators are generally expected to understand is that the whole purpose of the Miranda warnings–which are mandated by the Supreme Court’s decision in the 1966 case  Miranda v. Arizona–is to make sure that any incriminating evidence that results from questioning is available for use at trial, and the warnings are designed to help assure that whatever the suspect has said that gets him into trouble was said voluntarily.

If the threat of terrorism rises to the level that intelligence is more important than criminal evidence, then official policy, as outlined in the 2010 Justice Department memo, for example, will give it a higher priority.

That, however, is a judgment call that has to be made one case at a time, as in the case of the Boston bombing suspect. From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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