The Final Week of Judicial Activism

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The Final Week of Judicial Activism

 

Lost in the glare of the ObamaCare decision: last week, the Supreme Court overturned 32 of 33 statutes.

 

July 7, 2012 - 12:00 am

Last week, while upholding ObamaCare, the Supreme Court issued rulings in four other cases, overturning a total of 32 state and federal statutes. The significance of the other cases may have been lost in the glare of the ObamaCare decision. The other cases portray a Court quite ready to — in President Obama’s famous words — “somehow overturn a duly constituted and passed law.” Taken together, the four cases are a study in judicial activism.

1. In United States v. Alvarez, the Court overturned a federal statute making it a crime to lie about receiving a Congressional Medal of Honor or similar military medal. Congress sought to stem an epidemic of false claims about such medals, concluding it was undermining the nation’s system of military honors. The statute penalized a person’s intentionally false statement about the medal — a blatant lie, with no inherent value as speech, reflecting no political or other point of view, with the true facts within the person’s own direct knowledge.

The Court held 6-3 that the statute violated the First Amendment. The majority noted that content-based restrictions on speech had been permitted “only for a few historic categories” of speech, “including [1] incitement, [2] obscenity, [3] defamation, [4] speech integral to criminal conduct, [5] so-called ‘fighting words,’ [6] child pornography, [7] fraud, [8] true threats, and [9] speech presenting some grave and imminent threat.” The Court ruled against adding lies about military honors to the list, suggesting the government could protect the integrity of medals in less burdensome ways, possibly through “a more finely tailored statute.”

Justice Breyer’s concurring opinion gave an example of such a statute. He noted “not all military awards are alike,” that “Congress might determine that some warrant greater protection that others,” and that perhaps it could “focus its coverage on lies [about medals] most likely to be harmful.” In his dissent, Justice Alito (joined by Justices Scalia and Thomas) succinctly illustrated the nature of such a ruling:

Justice Breyer also proposes narrowing the statute so that it covers a shorter list of military awards, but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place.

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