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Curse of judicial minimalism

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Even when Supreme Court decisions are unanimous, the justices can be fiercely divided about fundamental matters, as was demonstrated by two 9-0 rulings last week. One overturned a Massachusetts law restricting speech near abortion clinics. The other invalidated recess appointments that President Obama made when the Senate said it was not in recess. In the first, four justices who concurred in the result rejected the majority’s reasoning because it minimized the law’s constitutional offense. In the second, four justices who concurred with the court’s judgment that Obama had exceeded his powers argued that the majority’s reasoning validated the Senate’s long complicity in practices that augment presidential power by diminishing the Senate’s power to advise and consent to presidential nominations.

A provision of Massachusetts’ law stipulated 35-foot zones around abortion clinics, from which spaces people wanting to engage in sidewalk counseling — urging women to forgo abortions — would be excluded. Another provision of that law makes it a criminal offense if someone “knowingly obstructs, detains, hinders, impedes or blocks” persons approaching abortion clinics raises no First Amendment problems. The challenged law, however, proscribes persuasion in a public place, speech which unwilling listeners can walk away from.

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