Telling It Like It Isn’t

John Roberts speaks out. A little.

Students protest Supreme Court Chief Justice John Roberts at Syracuse University

SYRACUSE, N.Y.—Chief Justice John Roberts is here to dedicate the newest building at Syracuse University’s Newhouse School of Public Communications. The $31.6 million “Newhouse Three” is the third structure in the media-studies complex, and the words of the First Amendment are wrapped prominently around the outside of the striking new building.

In a speech before the ribbon cutting, in the campus’ packed Hendricks Chapel, Roberts offers a reflection on the importance of the First Amendment. It’s less a lofty sentiment than a shot across the bow: Mess with the notion of an independent judiciary, he warns, and you can say goodbye to your guarantees of free speech.

The ironies inherent in a Roberts speech about the First Amendment abound. Last week, in a speech delivered at the University of Montana Law School in Missoula, Roberts told the crowd that he actually needs to avoid speaking freely above virtually all things: “Of course, what you would find most interesting is what I can’t talk about,” he said. In some ways, that is the case again today. For one thing, the chief justice will not discuss the state of his health after a dramatic seizure this summer. He also avoids any substantive discussions of his less-than-spectacular record thus far on speech issues before the high court.

So, I’ll discuss them. In June, in two votes in major speech cases, Roberts ruled 1) that in a tie between the speaker and the government, the tie must always go to the speaker; and 2) that when that speaker is a student, the tie goes to the government. I’m not the first to observe today that students should be just slightly anxious about Roberts as the arbiter of student speech after the latter ruling last spring, in Morse v. Frederick, the infamous “Bong hits 4 Jesus” case. Certainly, a smattering of protesters agrees. But Roberts rather deftly deflects any questions about his own views on student speech into a not-so-subtle warning that all things being equal, it’s still judges you want deciding these questions.

Roberts opens with a zinger guaranteed to mean that the Supreme Court press corps will continue to work out of a temporary trailer for the next two years: Noting the Newhouse Three’s on-time completion, he bemoans the construction project to modernize the court: “I wish I could say our project was on time,” he laughs. “Some subcontractors seem to have the motto: ‘we’re not happy until you’re not.’ ” Hallo again, trailer.

The chief justice then cautions that the words of the First Amendment cannot be understood in isolation. They cannot be understood without contemplating the “sharp break” from the British system contemplated by the Framers. Since Marbury v. Madison, it has been the job of the courts to interpret the words of the First Amendment. And those words are not just “independent and abstract virtues.” Indeed their whole purpose is to check the government. He cites the trial of John Peter Zenger for seditious libel as the roots of a “distinctly American view of speech.”

Roberts cautions that the words of the Constitution aren’t enough. “Do not think for a moment that these words alone will protect you,” he warns, citing to the promises and freedoms laid out in the 1977 Constitution of the Soviet Union. “All lies,” he says. “These words are nothing but empty promises, without the courts that have the power to protect you.”

In the end, only an independent judiciary can act as a “bulwark against tyranny,” and only the judiciary will ensure that “the voices of the upstarts and the unfashionable can be heard.” It’s the courts that protect against majority-imposed definitions of acceptable speech: “The creation of a government does not by itself put a check on the government.” The Framers guaranteed that courts would render these unpopular decisions by requiring just compensation and lifetime tenure. The courts alone “give the First Amendment its vitality.” As such, the First Amendment rests on the foundation of nothing less than judicial independence.

Congressional threats of term limits for justices or other changes in the court (like FDR’s court-packing plan) are fine. It’s a free country and everyone may say what they think. But bear in mind that “the First Amendment will certainly be the first victim of any attack on the judiciary.” By all means, “celebrate the words of the First Amendment,” he concludes. But don’t forget the words of the Soviet Constitution. “It’s the separation of powers alone that provides the judiciary with the power to make those words a reality.”

It’s an elegant formulation. Attack the justices, limit their terms, restructure their courts, cut their pay, and they will lose their ability to protect you. Better to have the judiciary interpreting the words of the First Amendment than the president or the ruling political party. But wouldn’t that formulation assume that when those unpopular, unfashionable, unruly students want to say wacky things, the courts would have their backs? The chief justice doesn’t explain today how twisting the ambiguous language of “Bong hits 4 Jesus” into a pro-drug message in order to suppress it protects us from the tyrannical linguistic preferences of the ruling elites.  I’m sure there is an explanation. John Roberts just isn’t free to discuss it.