Resistance/backlash/response to Supreme Court opinions

[Andrew Koppelman]

In response to Dan Conkle's request for clarification, I'll repeat an
analysis I posted on June 29 (with minor modifications, and apologies for
the repetition):

It's not clear how a discrimination defendant can lose under
the Dale majority's test.  (Both dissenters point this out, but the majority
ignores them.)  Ollie's Barbecue is a restaurant, notorious in some
quarters for the time,
some decades ago, when it litigated its right to discriminate all the way
to the Supreme Court. Tomorrow it decides that it expresses a message of
white supremacy and segregation. It therefore claims a right to exclude
blacks, since including them would burden the expression of its viewpoint
of white supremacy.

Now, unlike the scouts, Ollie's is a commercial establishment, but the
scouts' noncommercial character played no role in the Dale opinion.
Commercial speech is entitled to a lower level of protection, but the
speech at issue here is not an attempt to solicit a commercial transaction.
Rather, it is entitled to the highest level of first amendment protection,
and Ollie's commercial character doesn't change this. If the restaurant
took out a racist ad in the paper or displayed a racist billboard, these
things would be protected by the first amendment. You may be tempted to
doubt that Ollie's really does express a message of white supremacy, but
under Dale you are not permitted to doubt that; you must give deference to
Ollie's assertions regarding the nature of its expression.

Now, David Bernstein correctly points out that O'Connor was part of the
Dale majority, and that she insisted quite strongly on the
commercial/noncommercial distinction in her Roberts decision.  But Roberts
was written many years ago.  David's implicit rule of construction is that
a Supreme Court opinion cannot be read to adopt any rule of law that was
expressly repudiated by any member of the majority (or perhaps only of the
5-4 majority, if that's the count) in an earlier decision.  Has any court
ever adopted that rule of construction, however?  Weren't lower courts
expressly admonished not to do this kind of vote-counting in Agostini v.
Felton?

As for David's suggestion that only "expressive associations" are protected
by the first amendment, this is nonsense.  Even for-profit corporations
have a right of free speech.

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Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
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