126. The "Fixed Star in Our Constitutional Constellation"

It's worth spending time with Justice Robert Jackson's 1943 majority opinion holding that the First Amendment bars compulsory flag salutes and compelled recitations of the Pledge of Allegiance.

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The Supreme Court made a decent amount of news on Friday, and we’ll get into all of it below. But I wanted to use today’s post to take a step back from the (overwhelming) news of the moment and reflect on one of my favorite (and, I’d argue, one of the most powerful) majority opinions in the Court’s history—Justice Robert Jackson’s June 1943 opinion for the majority in West Virginia Board of Education v. Barnette. The backstory to Barnette is intriguing in its own right, but there is perhaps no more meaningful assertion of American pluralism—and the Constitution’s role in protecting that pluralism—than the last three pages of Jackson’s explanation for why the First Amendment prohibits public schools from compelling flag salutes or recitations of the Pledge of Allegiance. As Jackson concluded in a ruling that was handed down on Flag Day¹ in the middle of the Second World War (and at a point at which the outcome of the war was still very much in doubt): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

We’ll come back to Jackson and Barnette. But first, the news.

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On the Docket

The Court wrapped up its annual (if informal) mid-winter recess with a bang on Friday—handing down three decisions in argued cases and then, after the close of business, a … non-decision … on the second Trump administration’s first emergency application in the Hampton Dellinger removal case.

Taking the merits rulings first:²

1. In Williams v. Reed, Justice Kavanaugh wrote for a 5-4 majority (joined by the Chief Justice and the three Democratic appointees) in holding that Alabama state courts could not enforce state exhaustion requirements if doing so would effectively frustrate a federal claim under 42 U.S.C. § 1983. This relatively modest (Alabama-specific) case is part of a broader line of rulings about when state courts can and cannot refuse to hear federal claims—where Justice Thomas (who wrote on behalf of the four dissenters) has long thought that the Court has gone astray, and I’ve disagreed. The only surprise to me here is Justice Barrett; I would’ve thought she’d go with the majority on this one.

2. In Wisconsin Bell v. United States ex rel. Heath, Justice Kagan wrote for an effectively unanimous Court in holding that reimbursement requests under the federal E-Rate program are “claims” that can give rise to fraud suits under the False Claims Act. That’s not an especially significant or surprising result. But Justices Kavanaugh reiterated his view, which Justice Thomas has previously endorsed, that the Court should take up in a future case whether so-called qui tam suits (like those under the False Claims Act) are consistent with Article II of the Constitution.³ Sigh.

3. Finally, in Republic of Hungary v. Simon, a unanimous Court in an opinion by Justice Sotomayor rejected an effort by Jewish survivors of the Hungarian Holocaust and their heirs to hold Hungary and its national railway liable for property allegedly seized during World War II. The plaintiffs alleged that Hungary had commingled proceeds from the expropriation of their property with other funds used for commercial activities in the United States. The Court held that Hungary’s alleged commingling of funds, by itself, was insufficient to create the requisite nexus to commercial activities in the United States.

As for the Dellinger case (the background of which was the subject of last Monday’s newsletter), the Court issued a very strange order Friday night in which it … didn’t resolve the Trump administration’s application. Rather, it held the application “in abeyance until February 26, when the [temporary restraining order blocking Dellinger’s removal] is set to expire.” Justices Sotomayor and Jackson noted that they would’ve denied the government’s application outright; Justice Gorsuch wrote an opinion (joined by Justice Alito) noting that they would’ve granted the application—albeit without expressing a view on the merits; Gorsuch’s principal objection was to the relief the district court provided.

As I noted last week, the procedural issue here (whether the government could even appeal the district court’s temporary restraining order) was going to be a significant obstacle not just legally, but also practically—because the Court would be (and apparently was) understandably wary of opening the floodgates to a slew of novel appeals from TROs (and requests for emergency relief while those appeals are pending). Thus, part of what happened Friday appeared to reflect concern from 5-7 of the justices about endorsing these kinds of appeals.

But the fact that there weren’t five votes to deny the application outright suggests that there are also 5-7 justices who are otherwise inclined to side with the Trump administration. Holding the application “in abeyance” thus lets the TRO run its course before they have to decide, one way or the other, what to do—while also perhaps sending a message to district courts to not get carried away with the length of the TROs they are imposing.

As for what happens next, the district court is set to hold its preliminary injunction hearing on Wednesday. If Judge (Amy Berman) Jackson extends the TRO or converts it into an injunction, it stands to reason that the government will renew its request for relief from the justices—so that Friday night’s ruling is likely not going to be the last word from the Court on the matter.⁴

The Court also held a regular Conference on Friday, from which an Order List is expected at 9:30 ET today. Then, the “February” argument session begins at 10:00 ET. And in addition to three days of arguments, we expect one or more additional rulings in argued cases tomorrow (Tuesday) at 10:00 ET. Even without new emergency applications, we’re entering a busier period for the Court. And with more Trump cases inexorably heading their way toward the Court, it’ll be only that much more so.

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The One First “Long Read”:
“The Unanimity of the Graveyard”

To my mind, one of the most alarming themes across so many of the stories coming out of the second Trump administration has been the formal and functional efforts to demand various forms of fealty to the President—firing lawyers, FBI agents, and other government employees for no reason other than because they had something to do with the January 6; sacking senior military commanders (and senior military lawyers) for … reasons; and a host of other examples of putting support for the President and his agenda ahead of fidelity to the Constitution. The common element cutting across all of these disparate flashpoints is a kind of Trumpist orthodoxy: you view your job as supporting the President and what he’s doing, or you’re out.

It’s that backdrop that brought me back to Barnette. In its June 1940 ruling in Minersville School District v. Gobitis,⁵ the Supreme Court had rejected a First Amendment challenge (by two students who were Jehovah’s Witnesses) to a Pennsylvania school district’s requirement that public schoolchildren salute the flag and recite the Pledge of Allegiance each morning. Justice Frankfurter wrote on behalf of an 8-1 majority, stressing that “national unity is the basis of national security”; only then-Justice Harlan Fiske Stone dissented. Stone’s dissent was, by his standards, fiery, concluding that “the guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them,” and that “the very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say.”

The Gobitis ruling was followed by a wave of violent attacks against Jehovah’s Witnesses—and a wave of regret among at least some of the justices who joined it. Justice Frank Murphy, who had joined the majority opinion, apparently instructed one of his clerks to look for an opportunity to revisit it. Murphy joined Justices Hugo Black and William O. Douglas in a 1942 opinion suggesting that Gobitis had been wrongly decided. Between that change of heart, the appointment of two new justices (including Jackson), and the elevation of Stone to Chief Justice in 1941, the Court that considered the Barnette case in 1943 was already in a very different place than the one that had decided Gobitis three years earlier.

The Court was in a different place, and so was the United States. The Barnette case reached the Court at the end of 1942—with the Battle of Stalingrad and the Guadalcanal campaigns still very much ongoing, and at a point at which the outcome of the Second World War remained very much unsettled. After the March 1943 argument, and with a majority in place to overrule Gobitis, Stone assigned the opinion to Jackson—who had been President Roosevelt’s Attorney General at the time Gobitis had been decided.

Jackson’s key analytical move in Barnette was to disaggregate the case from the specific religious beliefs of Jehovah’s Witnesses. As he wrote, “While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.” In other words, the First Amendment issue was about compelled speech for all, not just for those for whom the speech was inconsistent with their religious beliefs.

Jackson then proceeded to heavily criticize the analytical and historical foundation on which Justice Frankfurter’s Gobitis opinion had rested, before turning to the broader importance of ruling for the Barnetts, in one of my favorite passages in any Supreme Court opinion ever. If you’ll forgive me, I’m going to quote in full.

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Barnette was written in the context of compelling speech by schoolchildren, but its broader point—written at a time in which the American public was becoming increasingly aware of the terrible atrocities that the Nazis were committing in the name of national unity—was as powerful as Jackson’s prose was elegant. Ideological pluralism isn’t just a feature of our culture; it is a constitutionally protected reality. And enforced orthodoxy, whether in the name of national unity, fealty to a particular religion, or obeisance to a specific political leader, is a corruption of our most fundamental constitutional ideals. It’s why, among lots of other things, federal employees and officers take an oath to support the Constitution, not the President.

Jackson, who would go on to serve as the lead U.S. prosecutor at the International Military Tribunal at Nuremberg, was exactly right in Barnette. We ignore him at our peril.

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SCOTUS Trivia: The First Justice Jackson

I’ve previously noted that Justice Ketanji Brown Jackson is the third person to sit on the Court with the same last name—the first time that’s happened in the Court’s history (there are eight other pairs—including, among the current Court, one of the two Justices Roberts). And I think it’s safe to say that law students and those otherwise familiar with the Court and its history are familiar with both the second and third Justices Jackson.

But the first Justice Jackson is far less well-known. Howell Edmunds Jackson was appointed to the Court by Republican President Benjamin Harrison (on Harrison’s last day in office!) to a seat that had become vacant upon the January 1893 death of Justice Lucius Quintus Cincinnatus (L.Q.C.) Lamar. Jackson was a Tennessee Democrat who had worked for the Confederate government during the Civil War, and was serving as one of Tennessee’s senators when he was appointed a federal circuit judge by President Cleveland in 1886. When Lamar died, Harrison, now a lame-duck facing a Democratic Senate, opted to nominate his former Senate colleague and friend, Jackson, rather than letting President-Elect Cleveland fill the seat. The Senate quickly obliged.

Soon after joining the Court, however, Jackson developed tuberculosis—to which he would succumb just two-and-a-half years after taking the bench. Cleveland was thus able to fill the seat after all—appointing Justice Rufus Peckham in 1895 (which remains the last time that a Senate controlled by Republicans confirmed a Democratic President’s Supreme Court nominee).

Jackson’s brief tenure means that he made at most a modest contribution to the Court’s output. Indeed, the consensus is that his only well-known opinion is his dissent in Pollock v. Farmers’ Loan & Trust Co.—in which a 5-4 majority struck down a federal income tax on the ground that it was an unapportioned, direct tax.⁶

The Supreme Court that decided Pollock photographed on October 13, 1894. This is the first picture in which the justices sat in their (now-typical) staggered seniority order. As the second-most-junior justice, Jackson is thus to the far left of the back row.

The Sixteenth Amendment, ratified in 1913, overturned Pollock—and largely vindicated Jackson’s dissent.

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Until then, please stay safe out there…

1. It appears that it was just a coincidence that the ruling came down on Flag Day. But that still has to go down as one of the most remarkable coincidences in the dates of Supreme Court decisions … ever.

2. As I’ve noted before, although the website posts the Court’s decisions in seniority order, they’re handed down from the bench in reverse-seniority order—which is the order in which I cover them.

3. A qui tam suit is brought by an outside party (the “qui tam relator”) against a party that has allegedly defrauded the federal government, seeking to prove the fraud and collect a share of the damages. The idea, which has a very long history, is to provide incentives for private individuals to help the government root out fraud. Justices Thomas and Kavanaugh have increasingly objected to such suits, though, on the view that they’re a usurpation of the Executive Branch’s power to decide when (and when not to) enforce federal law.

4. All that the government has asked the Court to do is to vacate Judge Jackson’s TRO. If Judge Jackson issues a preliminary injunction, the government presumably would (and could) have to appeal that ruling to the D.C. Circuit first before going back to the justices (who might be inclined to let the D.C. Circuit reach the merits first).

5. The children in Gobitis were Lillian and William Gobitas. Their family name was misspelled in the Court’s official documents. The same thing happened in Barnette—where the plaintiffs were Marie and Gathie Barnett, not Barnette.

6. The Court had initially divided 4-4 on the constitutional question in Pollock while Jackson was absent due to illness. Although contemporary observers thus viewed his as the swing vote when the case was reheard, it turned out that one of the justices who had initially voted to uphold the tax switched sides.