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“Better the Devil We Know”: Supreme Court Rulings on Free Speech and Labor Put Justice Stephen Breyer in the Spotlight

While facing calls to resign during a Biden presidency, the liberal justice is making key statements about the law that surely sound like parting shots.

Only the nerdiest of nerds are familiar with the Supreme Court’s customs and traditions, and if there’s anyone who may be inclined to treat these things as if they were holy sacraments, it is Justice Stephen Breyer. Among those rituals is the issuance of decisions by seniority, and as a result, Breyer, in back-to-back rulings on Wednesday, had starring turns as the senior-most member of the Supreme Court’s liberal bloc, to make a statement about what the law is, or should be, for people it tends to treat with a measure of suspicion: students and workers without labor protections. 

Broadly speaking, Breyer, in one case, stood up for the First Amendment right of students to express unpopular views when they’re not at school. In the other, he stood up for a California regulation that, for more than 40 years, has granted farmworkers one means to organize in the absence of federal protections that leaves them vulnerable to abuse.

Neither case, Mahanoy Area School District v. B. L. or Cedar Point Nursery v. Hassid, will likely be remembered as landmarks that will stand the test of time. When I virtually attended the oral argument for both cases, in March and April, that much was clear—both cases felt important, if only because each rested on history, and historic struggles, that this Supreme Court could decide to upend. Neither received the breathlessness of, say, the justices’ third bite at the Affordable Care Act. Or the future of gay rights in the face of an ascendant conservative, religious majority. In each of those cases, decided last week, the Supreme Court got away with limited rulings that had the virtue of deciding as little as possible, with as much consensus as possible, to feed the perception, at least outwardly, that everything is fine with the nine. Washington may be broken, but they aren’t. And Breyer, who has received a barrage of calls to retire to ensure President Joe Biden can make a Supreme Court appointment, may have wanted to keep things that way.

Yet if you read a little more closely, both Mahanoy and Cedar Point Nursery do break new ground in constitutional law that will remain with us—one for the better, because students, after Wednesday, will have a little more freedom to be themselves on social media—at least when they’re beyond the schoolhouse gate; the other for the worse, because if there’s one group of people who deserve the law’s auspices, it is the largely migrant workforce, essential since the pandemic began, that puts food on our tables. 

Chief Justice John Roberts was in the majority in both cases, and he may have decided to assign Mahanoy to Breyer because Breyer is the kind of judge who enjoys the work of judging—balancing tests, cost-benefit analyses, things other than bright-line rules and strict constructionism. Law is hard, and Mahanoy, which asked the Supreme Court to determine whether the First Amendment protects the speech of a cheerleader who expressed a few choice words about cheer on Snapchat, seemed well-suited for a pragmatist, Breyer-like solution. Best of all, he didn’t self-censor, as his colleagues or lawyers are sometimes wont to do when F-bombs are implicated: “The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: ‘Fuck school fuck softball fuck cheer fuck everything,’” he wrote, referring to Brandi Levy, the student, by her initials. 

That language got her suspended from the junior-varsity cheerleading squad. And near unanimously, the Supreme Court ruled on Wednesday that punishing this sort of speech violated her right to self-expression off school premises. But Breyer, writing for the court, pretty much stopped there. “Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway,” Breyer wrote, schools simply have a “diminished” interest, under the First Amendment, in controlling how students behave or express themselves on, say, TikTok or Instagram. 

The Supreme Court left it “for future cases to decide where, when, and how” different circumstances may call for a different outcome. “These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers,” Breyer added. The lone dissenter was Justice Clarence Thomas, who did self-censor and criticized Breyer’s “vague considerations”—he would’ve simply allowed the school to punish the student for her off-campus profanity, consistent with “the 150 years of history supporting the coach.” (One scholar of these kinds of cases has already branded the ruling “painfully narrow.”)

If Mahanoy, on the surface, seems like an exercise in unity and splitting hairs, Cedar Point Nursery, the other big case the Supreme Court decided on Wednesday, is breathtaking in its reach, bringing us back to the usual, conservative-liberal divisions of the new, 6–3 Roberts court. Implicitly, the case is about another freedom the First Amendment protects: the right of workers to organize for better wages and working conditions under a state’s labor laws. Except the Supreme Court looks a lot different since Donald Trump, who was no friend to labor, transformed it, and the case arrived at its doorstep, instead, as a case about property rights: Does a California law that allows labor organizers to briefly enter farmland, during nonwork hours, a few months a year, to engage in union-organizing activities violate the Constitution’s prohibition against the government “taking” property without just compensation?

This area of law is no walk in the park. Yet one need not be a cynic to easily guess how the Supreme Court answered that question. This time around, Chief Justice Roberts assigned the ruling to himself, and he and the court’s five other conservatives—Thomas and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—didn’t just rule against the California regulation at issue; they also likened it to “a per se physical taking.” I’ll spare you the legalese, but in property law, everyone generally has a right to keep unwanted people off their property—to get them off their lawn, if you will. This sacrosanct “right to exclude,” Roberts wrote, is not “an empty formality” that the government can mess around with whenever it pleases. And here, according to Roberts, a temporary legal permit to let organizers reach farmworkers on private property during off hours is just a bridge too far. In his view, that’s the same as the government actually “appropriating” the property, and so California must pay. The brightest of bright-line rules. This regulation, mind you, has sat on the books, undisturbed, for more than 40 years. Until now.

Breyer, now in the minority, assigned the dissent to himself, as is his prerogative. And joined by Justices Sonia Sotomayor and Elena Kagan, who let him do all the talking, he once again did what judges do: stuck to precedent, past rules, and the things he knows. “Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the Court’s case law sets forth,” he wrote. “Better the devil we know . . . .” he added. In his dissenting view, this temporal regulation didn’t appropriate, or “take,” anything from the California growers who sued to block it. In a different part of his opinion, in layman’s terms, he dissected the majority’s brutish approach. “A right to enter my woods whenever you wish is a right to use that property permanently, even if you exercise that right only on occasion,” he wrote. “A right to enter my woods only on certain occasions is not a right to use the woods permanently. In the first case one might reasonably use the term per se taking. It is as if my woods are yours. In the second case it is a taking only if the regulation allowing it goes ‘too far.’”

That “too far” language comes from past precedent that, by Breyer’s own admission, isn’t exactly intuitive or “easy to apply.” But he allows that such regulations are necessary because we live in a modern, complex world that calls for government regulations that address modern, complex problems. And in the 1970s, when the labor regulation the majority straitjacketed was enacted, California decided to create, in Breyer’s words, “rules governing the organizing of agricultural workers.” As Marina Multhaup details in the labor-law blog On Labor, the force behind this regulation was the labor movement itself—more specifically, the tireless efforts of a broad coalition of farmworkers of color, led by César Chávez and Dolores Huerta, historically some of the most disempowered and abused members of the American workforce. Back in the ’70s, the Supreme Court had already considered, and rejected, an appeal challenging the very same regulation “for want of a substantial federal question.” That was then. Labor and workers, these days, don’t fare particularly well with the Roberts court, let alone with an emboldened conservative majority. And so the very existence of Cedar Point Nursery can be readily attributed to the Supreme Court’s recent change in personnel. We wouldn’t be here if conservative legal forces had not brought it to this new, captive audience.

What else might this ruling, and reconstituted Supreme Court, endanger in the future? As Harvard Law School professor Niko Bowie explains in a sobering Twitter thread reacting to Cedar Point Nursery, the sky is the limit, as Roberts’ opinion could be weaponized to nuke other historic, hard-won features of modern governance designed to keep workplace, business, and industry abuses in check.

Which brings us back to Breyer. Shortly after Roberts became chief and Alito also joined the bench, Breyer, in an anguished oral dissent in a school-integration case in 2007, raised eyebrows when he lamented, “It is not often in the law that so few have so quickly changed so much.” That unscripted line didn’t appear in his written opinion, which took pains to document our nation’s tortured attempts, or lack thereof, to comply with Brown v. Board of Education. I’d like to imagine Breyer may have been tempted to say something similar about César Chávez and the United Farm Workers’ historic struggles in California and elsewhere on Wednesday, had it not been for the fact that the Supreme Court isn’t meeting in person, and announcing opinions in the courtroom, due to the pandemic. If Breyer retires at the end of this term in the coming days or weeks, this muted, socially distanced finale may yet be the last we hear from a judge who, by and large, would rather stick to the history, traditions, and precedent he knows, rather than chart paths the Supreme Court, and the rest of us, may later come to regret.

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