Susan Shelley: Why didn’t SCOTUS defend our free speech rights?
Political backlash
The Supreme Court’s decision in Murthy v. Missouri, the important First Amendment case about government censorship of Americans’ speech on social media, is puzzling.
The case, originally known as Missouri v. Biden, is a lawsuit filed against the government by two states and five censored individuals. It reached the Supreme Court because two lower courts issued an injunction ordering the Biden administration to stop coercing social media companies to throttle or remove constitutionally protected speech.
In October, the Supreme Court agreed to hear the administration’s appeal of the injunction and also to consider the merits of the case. But last week, in a 6-3 opinion written by Justice Amy Coney Barrett and joined by Chief Justice John Roberts, the court decided not to reach the merits. Instead, the majority said the plaintiffs did not have “standing” to seek the injunction. That sent the case back to the district court, where the lawsuit will proceed as before, without any restraint on government censorship activities in the meantime.
Barrett’s complicated analysis seems to require the plaintiffs to prove that government censorship will injure them in the future. And since no one can predict what a secret, back-channel government censorship program will do in the future, no one has standing to seek an injunction to stop it.
The decision was denounced by the three dissenting justices, Samuel Alito, Clarence Thomas and Neil Gorsuch. “Government officials may not coerce private entities to suppress speech,” Alito wrote, “and that is what happened in this case.”
Could something outside the case itself have influenced the majority’s decision to avoid a decision?
History may shed more light on the Murthy decision than legal analysis.
For example, back in 1905, the Supreme Court struck down a New York state labor law that said bakery owners could not require or permit employees to work more than 60 hours in one week. Justice Rufus Wheeler Peckham wrote that the law interfered with the right of contract between employer and employee, a liberty protected by the Fourteenth Amendment.
The president of the United States, Theodore Roosevelt, was furious at the decision. “I may not know much about law,” he raged, “but I do know one can put the fear of God into judges.”
“Liberty of contract” faded away quickly.
In 1937, President Franklin Roosevelt was tired of watching the Supreme Court strike down New Deal legislation as unconstitutional. With two more cases pending at the court, FDR took to the airwaves for a “fireside chat” about his new plan to reorganize the federal courts, adding up to six new Supreme Court justices, one for every current justice over the age of 70.
In what came to be known as “the switch in time that saved nine,” two justices somehow changed their positions and there was suddenly a 5-4 majority in support of the New Deal.
The current chief justice has also demonstrated an awareness of the risk of political backlash.
In 2012, Roberts found a way to uphold the Affordable Care Act by declaring that the individual mandate to buy health insurance was actually a tax, and therefore Congress had the power to enact it. This was a creative position that hadn’t been argued to the court.
In her book, “The Chief: The Life and Turbulent Times of Chief Justice John Roberts,” author Joan Biskupic relates the story of how Roberts negotiated with the other justices behind the scenes, changing his own position multiple times, because “he understood the importance of the insurance industry to U.S. businesses, and he was genuinely concerned about invalidating an entire law that had been approved through the democratic process to solve the intractable health care problem.”
Biskupic speculated that Roberts may have been motivated by “worries about his own legitimacy and legacy, intertwined with concerns about the legitimacy and legacy of the court.” However, “viewed only through a judicial lens, his moves were not consistent, and his legal arguments were not entirely coherent.”
In Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade, the chief justice voted with the majority but did not sign onto Justice Samuel Alito’s majority opinion, calling it “dramatic and consequential” and “unnecessary to decide the case before us.”
Roberts called for judicial restraint. “If it is not necessary to decide more to dispose of a case,” he wrote, “then it is necessary not to decide more.”
And that brings us back to Murthy v. Missouri, a decision that was widely reported in the media as a “victory” for President Joe Biden.
There are currently two major cases before the Supreme Court involving former President Donald Trump. The justices are deciding whether Trump has presidential immunity from prosecution. They’re also deciding whether a law against obstructing an official proceeding was improperly applied by prosecutors to charge more than 300 January 6th defendants and Trump himself.
While the court was considering these cases, President Biden appeared onstage at a fundraiser in Los Angeles and did Teddy Roosevelt’s act. “The Supreme Court has never been as out of kilter as it is today, I mean never,” Biden said.
The Murthy v. Missouri case was just two votes away from being a clear decision on the merits that the First Amendment prohibits the government abridging the freedom of speech. Instead, the case returns to the district court for more discovery, and more legal bills.
Is it possible that the chief justice sought to avoid a clear decision on the merits that would go against the Biden administration? Could he have been worried that too many decisions affecting the 2024 election were coming out at the same time, and the public might turn against the court if they all went in the same direction?
We’ll never know, unless somebody talks to Joan Biskupic.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley