In Duryea v. Guarnieri, Justice Kennedy wrote a majority opinion for 7 members (joined in judgment by 9) that breathes new life into the Petition Clause. Like most provisions of the Constitution, Justice Kennedy views the Petition Clause in broad sweeping language:

Among other rights essential to freedom, the First Amendment protects “the right of the people . . . to petition the Government for a redress of grievances.” U. S. Const., Amdt. 1.

Justice Kennedy, in a couple spots, has shown an interest in the petition clause. During oral arguments in Doe v. Reed, he commented:

JUSTICE KENNEDY: This case will likely be controlled by our First Amendment precedents, because that’s the most fully developed.

Did you look at the Petition Clause at all? In the early days of the republic, the petitions were the way in which you communicate with your legislator.

GENERAL McKENNA: Yes.

JUSTICE KENNEDY: And I tried to look it up. I have a recollection, but I’m not sure, that those petitions were sometimes put in the congressional record. Did you look at the history of the Petition Clause?

In the posture of this case, the Court has a limited analysis:

This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitionsprotected by the Petition Clause. This Court’s precedentsconfirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. . . . Although retaliation by a government employer for a public employee’s exercise of the right of access to the courts mayimplicate the protections of the Petition Clause, this caseprovides no necessity to consider the correct application ofthe Petition Clause beyond that context.

Next the Court considers the similarity between the “speech” and “petition” clauses, which are effectively “cognates.”

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition sharesubstantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Both speech and petition areintegral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the politicalsphere, both speech and petition advance personal expression, although the right to petition is generally concernedwith expression directed to the government seeking redress of a grievance

Kennedy includes a brief discussion of the original understanding of the Petition Clause:

At the founding, citizenspetitioned on a wide range of subjects, including mattersof both private and public concern. Petitions to the colonial legislatures concerned topics as diverse as debt actions, estate distributions, divorce proceedings, and requests for modification of a criminal sentence. Higginson,A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 146 (1986).Although some claims will be of interest only to the individual making the appeal, for that individual the need fora legal remedy may be a vital imperative. . . . The proper scope and application of the Petition Clause likewise cannot be determined merely by tallying up petitions to the colonial legislatures. Some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty.

Petition, as a word, a concept, and an essential safeguard of freedom, isof ancient significance in the English law and the Anglo-American legal tradition. See, e.g., 1 W. Blackstone, Commentaries *143. The right to petition applied to petitions from nobles to the King, from Parliament to the King, and from the people to the Parliament, and it concerned both discrete, personal injuries and great mattersof state.The right to petition traces its origins to Magna Carta,which confirmed the right of barons to petition the King.W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 467 (rev. 2d ed. 1958). The Magna Carta itself was King John’s answer to a petition from thebarons.

When Justice Kennedy starts citing Magna Carta you know it’s gonna be interesting. Plus a discussion of the Declaration!

The Declaration of Independence of 1776 arose in thesame tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only byrepeated injury.” The Declaration of Independence ¶30.

Curiously, Kennedy looks to history that took place after the ratification of the First Amendment to construe the First Amendment–as late as the Civil War and during the Suffragist Movement:

Petitions to the National Legislature also played acentral part in the legislative debate on the subject ofslavery in the years before the Civil War. See W. Miller, Arguing About Slavery (1995). Petitions allowed participation in democratic governance even by groups excluded from the franchise. See Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2182 (1998). For instance, petitions by women seeking the vote had a role in the early woman’s suffrage movement. See Cogan & Ginzberg, 1846 Petition for Woman’s Suffrage, New York State Constitutional Convention, 22 Signs 427, 437–438 (1997).

Justice Stevens’ dissent in Heller, joined by Justices Breyer and Ginsburg, criticized Justice Scalia for considering originalism at the wrong time with respect to the Second Amendment, by looking to post-enactment history. Not sure if they realized this inconsistency here.

Justice Scalia doubts the majority’s understanding of the Petition clause from a historical perspective, relying on his own originalist analysis.

I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedentsconfirm that the Petition Clause protects the right ofindividuals to appeal to courts and other forums estab-lished by the government for resolution of legal disputes.” . . . I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedentsconfirm that the Petition Clause protects the right ofindividuals to appeal to courts and other forums estab-lished by the government for resolution of legal disputes.”

His history shows that petitions were historically made to the legislature, and not to the courts, which “should give rise to a strong suspicion that no such right exists.”

The fact that the Court never affirmed a First Amendment right to litigate until its unsupported dictum in 1972—after having heard almost 200 years’ worth of lawsuits, untold numbers of which might have been affected by aFirst Amendment right to litigate—should give rise to a strong suspicion that no such right exists. “[A] universaland long-established tradition of prohibiting certain con-duct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Nevada Comm’n on Ethics v. Carrigan, ante, at 4 (internalquotation marks omitted).

Scalia, somewhat uncharacteristically, acknowledging the difference of opinions, concedes that “have made de-tailed historical arguments to the contrary.”

I acknowledge, however, that scholars have made de-tailed historical arguments to the contrary. See, e.g., Andrews, supra, at 595–625; Pfander, Sovereign Immu-nity and the Right to Petition: Toward a First AmendmentRight to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 903–962 (1997). As the Court’s opinion observes, the parties have not litigated the issue, and so I agree we should leave its resolution to anotherday

Scalia, as a textualist disagrees with the majority’s explanation that “the Petition Clause and Speech Clause should be treated identically.”

The complexity of treating the Petition Clause and SpeechClause separately is attributable to the inconsideratedisregard for judicial convenience displayed by those whoratified a First Amendment that included both provisions as separate constitutional rights. A plaintiff does not engage in pernicious “circumvention” of our SpeechClause precedents when he brings a claim premised on a separate enumerated right to which those precedents are inapplicable.

Different provisions of the Constitution should not be lumped together.

Scalia also rejects the attempt of the majority to “distinguish petitions of publicconcern from petitions of private concern.”

Accordingly,there should be no doctrinal distinction between them unless the history or tradition of the Petition Clause justi-fies it. The mere fact that the Court can enumerate sev-eral historical petitions of public importance, ante, at 14– 16, does not establish such a tradition, given that peti-tions for redress of private grievances vastly outnumbered them.

And finally, Scalia has a good zinger today:

It is the Constitution that establishes constitutional rights, not the Justices’ notions of what is important, or the top numbers on their Petition Hit Pa-rade. And there is no basis for believing that the PetitionClause gives special protection to public petitions.