McCullen v. Coakley (Ginsburg, J., Concurring after the fact)

August 22nd, 2014

When McCullen v. Coakley was decided, I was somewhat surprised that Justice Ginsburg did not write separately. Though the opinion was, on its face unanimous, I agree with Justice Scalia that it was a “specious unanimity.” But, don’t worry folks. There was a Justice Ginsburg concurring opinion. You won’t find it in the U.S. Reports, or even her personal archives. You’ll find it in an interview she gave with Marcia Coyle. You see, Justice Ginsburg concurred after the fact to stress that the key factor was that the regulation was “content neutral.”

NLJ: You have called the decision striking down the abortion-clinic buffer-zone law in Massachusetts a “good decision,” which you joined. Why did you join the chief justice’s opinion?

GINSBURG:It made a very important case that protests before abortion clinics, that regulation of those protests are content-neutral. That was the most important thing to me about the chief’s decision. The problem didn’t exist for hospitals, in general. The problem existed for one kind of place, and the legislation was aimed at ensuring access. Where Massachusetts went wrong was it went much further than necessary.

My initial view was this is permissible legislation but if you looked at the record, it was so sparse. I think at four of the clinics they had no evidence of any kind of disturbance. Then the video that they showed compared to the demonstrations that have occurred elsewhere, these were rather mild. It wasn’t necessary to have that 35-foot zone. And I think Massachusetts has gone back and changed it.

This would be the kind of statement we would find in a concurring opinion. We didn’t get that in court, but we find it after the fact.

RBG also offered these concurring thoughts on Noel Canning:

NLJ: The buffer-zone decision was unanimous in the judgment, but not in the opinion. Justice Antonin Scalia wrote a concurrence that was more of a dissent and he accused the court of “specious unanimity.” That case and the decision in the recess appointments clause challenge—also unanimous in the bottom-line judgment, but not in the opinion—gave rise to claims of “fauxnanimity.” Were they “specious” unanimous decisions?

GINSBURG: If the notion was the court was trying to appear unanimous when it wasn’t, that is not true. In Noel Canning [ the recess-appointments case], the court could not have disagreed more sharply on what is a recess that counts and could a vacancy occur before a recess. But when dealing with rules that Congress sets for the way it operates, the court has always been deferent to that. So I wouldn’t use the word ‘specious.’

I think some of the reports about Noel Canning, some of the headlines—’Court rejects Obama’s nominees—they missed what was really important about Noel Canning. The administration prevailed on the first two questions. It reminded me of when [news reports] decided Souter and Breyer were with the court in Bush v. Gore.

A Justice’s vote should speak for itself. I don’t like this ex post rationalization.