“The McCullen Case and the Craft of John Roberts” —Prof. Hadley Arkes in National Review Online

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By The James Wilson Institute • Posted on Jun 27 2014

Writing in National Review Online, Prof. Hadley Arkes examines the majority opinion in the case of McCullen v. Coakley written by Chief Justice John Roberts. Some excerpts: "John Roberts has taken matters back to the root of the old distinctions that the law used to recognize: viz., that we can tell the distinction between the speech that constitutes an assault or a conversation. In this case, one can tell the difference between the speech of Eleanor McCullen, quietly inviting women into a conversation, and the 'speech' of people shouting outside a clinic and calling names." "I would prefer myself a ruling, in the McCullen case, far broader, far closer to Scalia’s sense: namely, a ruling that does not create a separate class, for the opponents of abortion, outside the protections that are accorded to everyone else under the First Amendment. But what John Roberts managed to establish today is that, whatever local governments try to do in silencing the critics of abortion, they may not pass measures that bar someone like Eleanor McCullen, quietly speaking to women on the way to a clinic, earnestly trying to draw them away from killing the babies forming in their wombs. That is not all that some of us may wish, but neither is it a trifling matter. " "John Roberts wrote in a manner that used to command our approbation: As he sought to show, the law in Massachusetts, casting a buffer zone of 35 feet from clinics, could be understood and justified for purposes quite unconnected with silencing the opponents of abortion. We used to commend judges who could operate with a finer scalpel: They could concentrate their wit in countering only the abuses in a local law without impairing the capacity of the local government to preserve that law for its rightful purposes. So much could be said in that vein for what John Roberts has done in the McCullen case. But Scalia too has seen rightly here — that these laws cannot be explained by anything other than the passion to silence the critics of abortion. And so Roberts might as aptly drawn on the wisdom of Justice Mathews in the old Yick Wo case and said that “the law itself [may] be fair on its face and impartial in appearance,” and yet it may be 'applied and administered by public authority with an evil eye and an unequal hand.'" Read the whole piece here.