SCOTUS 2015: Confederate flag license plate decision is a free-speech disaster.

Supreme Court Breakfast Table

The Court Is at Its Worst When States Try to Do Good—and the Justices Slap Them Down

Supreme Court Breakfast Table

The Court Is at Its Worst When States Try to Do Good—and the Justices Slap Them Down
An email conversation about the news of the day.
June 24 2015 4:45 PM

Supreme Court Breakfast Table

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The court is at its worst when states try to do good—and the justices slap them down.

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The opinion in the Texas case seems to give states carte blanche to censor license plates.

Photo illustration by Slate. Photo by ra2studio/Shutterstock, license plate Texas Department of Motor Vehicles/Handout via Reuters.

Dear Walter, Dahlia, Judge Posner, Kenji, and Marty,

Thank you for the warm welcome! I’m excited to chatter about this term—although I refuse to call it liberal when the justices still seem poised to gut the Fair Housing Act, permit more mercury emissions, and bring gerrymandering back to Arizona.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

Dahlia, you know I have to accept your offer to whinge more about the license plate ruling, which let states refuse to print specialized plates if they found the message offensive. (Specifically, Texas didn’t want to print a plate featuring a Confederate flag—which is, admittedly, an ugly symbol of racism.) I thought the decision was hugely misguided. During oral arguments, a majority of the justices seemed intent on crafting a First Amendment standard that let the Confederate flag in and kept the swastika out. But Justice Stephen Breyer’s opinion for the court jettisons nuance in favor of an alarmingly broad anti-speech ruling. Breyer’s reasoning—that license plates are government speech, so the government gets to control them—seems to give states carte blanche to censor license plates. It’s hard to get riled up over that when a proposed plate represents racism. But what about a pro-choice plate? Can Texas now refuse to print those while printing anti-abortion plates?

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The Roberts court is famously good at protecting expression that’s really, really detestable. (Obvious examples: Westboro funeral protests, crush videos, Medal of Honor liars.) Here, though, the court balked—likely caught up in the ugly racism the Confederate flag represents. In the short term, it’s not particularly upsetting that states are empowered to block Confederate plates, especially in the shadow of the Charleston, South Carolina, shooting. (Virginia and Maryland are already using their newly confirmed powers of censorship to, well, censor the plates.) But in the long term, I can’t imagine anybody who supports basic free speech principles will be pleased when Alabama allows a Protect Marriage plate but rejects a Human Rights Campaign one.

Walter and Dahlia, you’re concerned that conservative rulings on Obamacare and same-sex marriage would essentially empower red states to deprive their citizens of health insurance and equality. I worry about that, too—but I’m even more disturbed when states, both red and blue, try to improve life for their residents and the court tells them they aren’t allowed to. I’m thinking, of course, about Arizona, whose nonpartisan redistricting commission appears to be on the brink of extinction. Before 2000, the state Legislature drew Arizona’s federal congressional districts. But that year, Arizona voters passed an initiative placing this power in the hands of an independent commission, which eliminated partisan gerrymandering to create fairer elections. Now the court appears eager to invalidate this commission—a ruling that will probably kill a similar commission in California—under a cramped reading of the Constitution.

By almost any measure, these commissions have been a fantastic success for democracy. And the constitutional argument against them is weak: While the Constitution gives the “legislature” authority over “the times, places, and manner” of elections, the court has long defined this authority to mean legislative power and legislative process. Founding-era dictionaries confirm this reading, defining legislature as a broad term encompassing “the Authority of making laws, or Power which makes them.” That power should obviously include a state’s citizens creating an independent redistricting commission.

But there’s almost no chance the court will accept this argument. In fact, the court seems weirdly eager to invalidate Arizona’s efforts to secure cleaner elections: In 2011, it also struck down the state’s moderate, common-sense public financing system. Now they look ready to revive gerrymandering. Arizona is a red-leaning state, but the court won’t even let it keep its few progressive-style reforms. If the court does lead America to divide more sharply into red and blue states, then I’m not sure blue states should get complacent about their perks.

Hoping to be proved wrong,

Mark

Read the previous entry and the next entry, both by Dahlia Lithwick.