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

Only the nerdiest of nerds are familiar with the Supreme Courts customs and traditions, and if theres 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 Courts 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 theyre 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 clearboth 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 arent. 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 usone for the better, because students, after Wednesday, will have a little more freedom to be themselves on social mediaat least when theyre beyond the schoolhouse gate; the other for the worse, because if theres one group of people who deserve the laws 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 judgingbalancing 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 didnt 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 Breyers vague considerationshe wouldve 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, 63 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 states 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 Constitutions prohibition against the government taking property without just compensation?

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