Cross-posted from SCOTUSblog.

There’s a pretty strong consensus that Chief Justice Fred Vinson was the worst Chief Justice of the twentieth century.  The conventional view goes something like this: Vinson was a bumbling, incompetent political hack, an intellectual lightweight with minimal understanding of complex legal issues, a card-playing crony of Harry Truman who continued to advise Truman even after taking his seat on the Court, a reactionary with horrific instincts in key civil liberties cases, and, worst of all, a major obstacle to unanimity in Brown v. Board of Education.  By this account, the best thing Vinson ever did was to die of a heart attack at precisely the right moment – in the middle of the Brown proceedings in 1953, thus allowing his successor, Chief Justice Earl Warren, to author a unanimous opinion invalidating racial segregation in public schools.

Last spring, Indiana Law Review hosted a symposium on counterfactuals in constitutional history.  Professor Gerard Magliocca assembled a group of constitutional law scholars to explore various “What ifs.”  For this symposium, I asked the question, “What if Fred Vinson had not died of a heart attack in 1953?”  That is, what would have happened to constitutional law and the Supreme Court if Fred Vinson, and not Earl Warren, had presided over the final decision in Brown?

When I started this project, I assumed that Vinson would have dissented in Brown.  Yet my research quickly convinced me that this view was wrong.  Most likely, Vinson would have authored a unanimous opinion in Brown invalidating segregation in public schools.  Vinson, not Warren, would have been the author of one of the Court’s most significant decisions, guaranteeing him instant historical immortality and a place among our nation’s most esteemed Chief Justices.

To be sure, Vinson would not have authored a broad opinion invalidating all racial distinctions and ordering the immediate integration of segregated schools.  But, then, neither did Earl Warren.  The Brown opinion was carefully limited to the facts of public school segregation, and Brown II delayed integration for years, under the “all deliberate speed” formula.  An opinion authored by Vinson would probably have looked similar to the Brown/Brown II duo that emerged from the Warren Court.

Four factors point in the direction of a Vinson-authored unanimous opinion in Brown.  First, Vinson had authored unanimous opinions for the Court in the most important race cases he confronted: Shelley v Kraemer, invalidating judicial enforcement of racially restrictive real estate covenants; Sweatt v. Painter, invalidating racial segregation at the University of Texas School of Law; and McLaurin v. Oklahoma State Regents for Higher Education, invalidating segregation within a graduate program in education.  In Sweatt and McLaurin, Vinson had emphasized the critical socializing role of education.  McLaurin concluded, “There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.”  This principle, although ostensibly confined to graduate education, had obvious implications for segregation at the elementary and secondary level.  Indeed, in conference, Vinson had suggested that graduate education could not be meaningfully distinguished from elementary and secondary education.

Second, Vinson was a steadfast supporter of the policies of the federal government.  In Brown, both the Truman and Eisenhower administrations had urged the court to strike down school segregation.  For Vinson to side against the stated preferences of the federal government, from both Democratic and Republican administrations, would have been decidedly out of character.

Third, Vinson was a fierce anti-Communist, perhaps the most strident anti-Communist to ever serve on the Court.  In numerous filings, the federal government had told the Court that racial segregation undermined America’s struggle against global Communism.  Vinson would have paid careful attention to this argument.  A vote to uphold segregation would hand a massive propaganda victory to Communist forces, something Vinson would do almost anything to avoid.

Fourth, Vinson was close to his friend, former President Harry Truman.  In 1948, Truman had gambled his entire presidency on the issue of civil rights, endorsing a broad civil rights platform and triggering a split with the southern wing of the Democratic Party.  Would Vinson, as Truman’s Chief Justice, really want to be known as the author of an opinion re-enforcing racial segregation?  This, too, seems unlikely.

Although one can never know for sure, it seems more likely than not that Vinson’s survival would have led to a unanimous opinion in Brown similar to the one ultimately authored by Chief Justice Warren.  Under this scenario, it would be impossible to dismiss Vinson as an incompetent failure.  Moreover, Brown would be seen not as the opening salvo of the Warren Court, but as the logical culmination of Vinson’s decisions in a line of unanimous race cases.

On a more whimsical note, the essay also explores what might have happened with subsequent appointments had Vinson not died prematurely.  The key conclusion is that Earl Warren would have been appointed an Associate Justice of the Court to fill the seat left vacant in 1954 by the death of Robert Jackson; Warren, however, would not have been named Chief Justice.  Instead, the most likely successors to Vinson would have been John Marshall Harlan under President Eisenhower or Byron White under President Kennedy.  Neither would have been especially successful as Chief Justice.  Moreover, depending on the timing of Vinson’s subsequent death, decisions such as Miranda v. Arizona could have easily come out the other way.

Earl Warren was so significant a Chief Justice that almost anyone who preceded him would look small in comparison.  Warren’s shadow has contributed greatly to the historical eclipse of Fred Vinson.  But if Vinson had instead been succeeded by a Harlan or a White, presiding over a fractured court and frequently dissenting from the Court’s rulings, Vinson’s Chief Justiceship would suffer little in comparison.  Indeed, his inability to command majorities would seem less of a failing and more like the typical lot of a mid-twentieth century Chief Justice.  With Brown behind him, Vinson might have even been seen as the most significant Chief Justice of the twentieth century.

By Professors Alan Brownstein and Vikram Amar.  Cross-posted from JURIST.

An unflinching commitment to freedom of speech is the cornerstone of constitutional democracy in the US. Certainly we protect freedom of speech more vigorously than any other western democracy. We also have a venerable tradition of respecting academic freedom at colleges and universities.

These two principles, freedom of speech and academic freedom, overlap and are interconnected in some ways. But they also reflect distinct ideas. Freedom of speech is a broadly applicable right that protects speakers both on and off campus from unwarranted government interference with expression. Academic freedom, which may extend beyond what the Constitution protects, is grounded on the idea that, at least in the academy, free inquiry unburdened by the constraints of orthodoxy will lead to the development of new ideas and knowledge.

At base though, both freedom of speech and academic freedom rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of one's argument, rather than the use of power to coerce others into acceding to the proponent's point of view.

Sometimes the heat and passion of political protests on college campuses causes these basic principles to be overlooked or ignored. When that happens, it is important to remember what freedom of speech and academic freedom really mean and how easily both of these principles can be misused and misinterpreted.

Recently at the University of California, Davis, protestors repeatedly obstructed access to a branch of a bank located on-campus. The bank had leased space to serve the campus community, and the lease would have provided $2 million dollars or more to the university over a 10-year period. Ultimately, and ostensibly in response to the protestors' conduct, the bank closed its campus branch office.

Photo from The Aggie.

The university administration and campus police identified several students who participated in the obstructive protests to the County District Attorney for prosecution under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney's office as well. On March 29, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

We have no basis for evaluating the merits of the charges brought against any individual. We also recognize that prosecution is not always an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. The university has administrative disciplinary procedures available to it that may be enforced against obstructive behavior. In some cases, in-house discipline may be preferable to prosecution.

The point of this article is not to discuss and compare alternative remedial responses to unlawful conduct on-campus. It is to evaluate the claim that politically motivated obstruction should be immunized from sanction.

The Board of the Davis Faculty Association (DFA), an organization that is sometimes thought by the media to speak on behalf of the larger UC Davis faculty but whose membership in fact comprises a very small fraction of the professors here at the university, challenged the administration's decision to seek prosecution of the identified students, not because the students were innocent of the charges against them or because campus disciplinary procedures would be a more appropriate response for certain kinds of violations of law on-campus, but because the obstruction of the bank was politically motivated and morally just from the DFA's point of view. The DFA letter/petition to the campus administration said in relevant part:

The closure of the branch and cancellation of the contract were due to a blockade of the branch office carried out by student and faculty protesters from January through March. It is important to understand the political content of this blockade: the demonstrators continually stated their opposition to the substitution of private contracts for public funding of the UC system, and they continually pointed out conflicts of interest related to University contracts with corporations profiting from student loan interest as the UC administration continues to increase tuition, thus forcing many students to take out increased loans. ... We reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent.

Referring to possible punishment of the students as "retroactive legal action" (as if the failure to arrest someone prior to, during or immediately after his violation somehow precludes or renders illicit the subsequent filing of charges), the DFA goes on to express its "opposition to the UC Davis administration's decision to have these cases forwarded to the DA by the police." It then asks "that the administration recognize the political content of the US Bank blockade rather than treating it as a criminal matter."

As mentioned earlier, the DFA Board does not speak for many people. But that even a few faculty members at one of the nation's top universities would misunderstand the basics of freedom of speech and/or academic freedom is troubling, and suggests the need to use this episode as a "teachable moment." For the reality is that the DFA's position is unworkable under any reasonable interpretation of free speech doctrine or academic freedom principles.

To begin with, it bears noting that a blockade is not, of course, constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because the conduct so obviously obstructs the liberty and lawful pursuits of others. Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected.

One critical reason why blockades can be prohibited is that they are not intended to and do not persuade anyone of the merits of the protestors' position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded — a commitment to the power of ideas rather than the use of force to change the way that people act.

The courts do recognize that sometimes government regulation of otherwise proscribable conduct can raise free speech concerns. This occurs when conduct is engaged in for expressive purposes, such as the burning of an American flag, and, crucially, the regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is punishing protestors not to protect the rights of third parties; it is regulating protestors' expressive conduct to censor the protestors' message. But the DFA's complaint is not (nor could it be, based on the available evidence) that the campus administration and police seek to prosecute the bank blockaders but would take no enforcement action against other blockaders who engaged in obstruction for different, "approved," purposes. In other words, the DFA does not rail against discriminatory enforcement. Instead, the DFA argues for discriminatory enforcement that provides the protestors special immunities. It demands that the campus and police treat the students involved in this blockade differently and more favorably relative to other students engaged in obstructive behavior, because of the expressive political purpose and message of the protestors at the bank.

Whether this suggestion by the DFA is viewed broadly or narrowly, it makes little sense. Let us look first at a broad understanding of DFA's submission. If the DFA is using the term "political content" expansively, its argument would seem to reject the enforcement of all content-neutral time, place and manner rules. After all, all intentional disobedience of a rule can be understood to express the "political" message that the actor considers his or her conduct to be more important than any obligation to comply with the rule. Time, place and manner rules often serve important purposes, however, including the creation of an environment where those who shout the loudest are not the only people who get to speak and be heard. Unsurprisingly, the idea that no one need ever obey such rules simply because they have "political" reasons for refusing to do so finds no support in court decisions.

As the Supreme Court of California stated in an important free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals unruly assertion of their rights of free expression does not imperil other citizen's rights of free association and discussion. ... Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

Perhaps the DFA intends for the term "political content" to be interpreted more narrowly. Perhaps the DFA is suggesting that obstruction and other violations of law should be excused whenever individuals are engaged in blockades in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day. Obstruction and blockades about things like privatization, under this analysis, should be treated as permissible, if not protected, expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, could not be enforced against "political" anti-abortion activists blockading the entrances to clinics. And what happens when two groups of opposing protestors both want to blockade a facility (say the US Supreme Court the day of the health care oral arguments) at the same time, or two opposing political groups want to blockade each other's protests? Without valid and enforceable time, place and manner rules applicable to political protestors, political protest could easily and literally devolve into melees.

Alternatively, maybe the suggestion is that laws prohibiting obstruction should be enforced off campus, but not on a college campus. But the problems do not disappear when protests occur at institutions of higher education. Under this analysis, campus administrators and police could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services. And you still have the problem of managing the use of scarce property among competing protestors.

Logistical costs aside, if we tried to treat only salient political blockades as permitted expressive activity, a public university's decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself violate the First Amendment. Government cannot discriminate on the basis of the subject of speech when it regulates expressive activity. In Carey v. Brown, for example, the US Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing connected to a place of employment from its coverage. Similarly, if the university is going to treat obstruction as permitted speech, it cannot permit some blockades based on the university's (contested) sense of the political salience of the protestors' message.

It may be that the DFA's position is narrower still. When it states that "[w]e reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent," the DFA appears to be arguing that participants in the blockade of the bank should not be punished because they are promoting a political cause which the DFA supports. Treating one political perspective more favorable than another, of course, constitutes viewpoint discrimination. A public university that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based. You don't need to have attended law school to intuit that.

In adopting a political position and permitting that viewpoint to influence its regulation of campus protests, a public university would be undermining more than the First Amendment. It would also be destroying any justification it might offer for protecting the academic freedom of its faculty and departments. When a university engages in viewpoint discrimination, it demonstrates that it is no longer committed to open inquiry and the free exchange of ideas. The university instead morphs into a political institution committed to particular perspectives — so much so that it excuses violations of law when the violators happen to agree with the orthodoxy of its political positions. We value political institutions in society (such as political parties). But public universities serve different purposes and would lose much of their distinctive worth and claim to public support if they succumbed to partisan political canons of truth and legitimacy.

We understand that in any society, individuals may feel compelled to engage in civil disobedience. This respected form of protest, however, bears no resemblance to the blockade of a bank and the accompanying insistence that those who engaged in obstruction should be immunized from the consequences of their conduct. Civil disobedience involves the deliberate decision to disobey an unjust law. Students challenging segregated facilities in the Jim Crow south by sitting in at lunch counters and bus stations engaged in civil disobedience by refusing to submit to racist laws. Laws regulating the time, place and manner of activities on public property in race-neutral, content-neutral, viewpoint neutral ways that leave open ample other opportunities for expression (and the campus' regulations have to and do satisfy these standards to be permissible) are not unjust laws.

More importantly, the communicative power of civil disobedience gains its force by protestors demonstrating the strength of their convictions by their willingness to be arrested and sanctioned for violating the law. Last time we checked, Dr. Martin Luther King, Jr., the person for whom our law school building is named, understood the difference between civil disobedience to unjust and unconstitutional laws and legitimate, constitutionally acceptable time, place and manner laws to which he had no basis for moral or legal objection.

Cross-posted from SCOTUSblog.

In 1979, Panigis Vartelas, a native of Greece, came to the United States on a student visa, became a lawful permanent resident in 1989, and pleaded guilty to a crime for a relatively minor role in a counterfeiting scheme in 1994.  Upon returning from a week-long trip to Greece to visit his ill parents in Greece in 2003, the U.S. government sought to deny his admission and remove him from the United States based on the counterfeiting conviction.

The issue before the Court was the application of Immigration & Nationality Act § 101(a)(13)(C)(v), which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  IIRIRA reformed the U.S. immigration laws in a number of important ways; among other things, it toughened the provisions governing the admission and removal of noncitizens guilty of criminal offenses.  Under the amended definition of “admission” into the United States, a lawful permanent resident returning from a brief trip outside the country who had been convicted of certain criminal offenses was deemed to be seeking admission into the country.  The U.S. government relied on the new provision to deny admission to Vartelas based on conviction for a “crime involving moral turpitude.”  Vartelas would not have been subject to deportation to Greece if he had not left the United States.  And, before 1996, as a lawful permanent resident, he would have been free to take a short trip abroad.  The U.S. Court of Appeals for the Second Circuit, agreeing with the Board of Immigration Appeals, had ordered that Vartelas be returned to Greece.

In an opinion by Justice Ginsburg, last Wednesday the Court reversed.  The majority summarizes its holding as follows:

We conclude that the relevant provision of IIRIRA, §1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction).   Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction.  The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction.

(emphasis added).

In concluding that Vartelas could not be subjected to the new admission rules enacted by Congress in 1996, the Court applied the “presumption against retroactive legislation” and the general retroactivity rules from its 1994 decision in Landsgraf v. USI Film Products.  Critical to the Court’s holding was its acceptance of Vartelas’s argument “that applying IIIRA to him, rather than the law that existed at the time of his conviction, would attach a `new disability,’ effectively a ban on travel outside the United States, `in respect to [events] . . . already past,’ . . .”  (emphasis added).

The U.S. government, as well as the dissent, argued that the case did not raise an issue of the retroactive application of law because Vartelas’s trip to Greece occurred after the 1996 act was passed and it was this trip — not the pre-1996 criminal conviction — that triggered the removal proceedings.  The Court emphatically rejected this argument, stating unequivocally that “[w]e find this argument disingenuous.”  The Court instead focused on the fact that the government’s effort to remove Vartelas from the United States was based on his pre-1996 criminal conviction rather than his post-1996 travel.

The Court found that, in pleading guilty to the criminal charge in 1994, Vartelas “likely relied” on the law as it existed at that time, which allowed him the freedom to take brief trips outside the United States.  In so doing, the Court closely followed the lead of INS v. St. Cyr (2001), in which the Court held that a noncitizen in accepting a plea agreement “almost certainly relied” upon then-existing discretionary relief available before 1996.  The Court further suggested that “Vartelas’ case [might] even [be] easier than St. Cyr’s” because St. Cyr sought discretionary relief existing before 1996, while Vartelas would have been free to take a short trip abroad under pre-1996 law.

In an opinion joined by Justices Thomas and Alito, Justice Scalia dissented.  The dissent viewed the activity regulated by the 1996 amendment as reentry into the United States after a trip outside the country.  Consequently, the new statutory language “has no retroactive effect on Vartelas because the reference point here – Vartelas’s readmission to the United States after a trip abroad – occurred years after the effective date.”  Justice Scalia accused the majority of going beyond the statutory language to achieve a fair result.  He stated that “new disabilities” are frequently attached to criminal convictions – for example, laws that render persons convicted of drug crimes ineligible for student loans.  Justice Scalia also stated that there could be little doubt that the new language “is intended to guard against the `dangers that arise postenactment’ from having aliens in our midst who have shown themselves to have proclivity for crime . . . .”

Just as I predicted after the oral arguments, the Court found for Vartelas in a narrowly drawn opinion that focused on the issue of the retroactivity of the 1996 amendments to the immigration laws.   The Court did not address whether Immigration and Nationality Act § 101(a)(13)(C)(v) overruled its 1963 decision in Rosenberg v. Fleuti, in which it held that an “innocent, casual, and brief” trip from the country did not subject the returning lawful permanent resident to treatment as seeking admission.  Nor did the Court address more broadly the constitutional rights of lawful permanent residents.

The holding that pre-1996 law applied to a plea bargain and criminal conviction before the 1996 amendments is consistent with the Court’s efforts to ensure that immigrants are made aware of the potential immigration consequences of a criminal conviction when making plea agreements.  For example, in Padilla v. Kentucky (2010), it held that an ineffective assistance of counsel claim could be based on an attorney’s failure to inform a noncitizen of the immigration consequences of a criminal conviction.  When Vartelas entered into his plea agreement, the law was such that he could reasonably expect to make a brief trip to Greece.   As the Court reasoned, the 1996 amendments to the immigration laws truly did create a “new disability” attached to Vartelas’s criminal conviction, and one that might be expected to be of great significance to a native of a foreign country.

In declining to apply the change in law retroactively, the majority applied basic retroactivity principles from its decision in Landsgraf v. USI Film Products and adhered to its approach in INS v. St. Cyr, which held that a form of relief from removal that was repealed by the 1996 reforms was still available for criminal convictions entered before 1996.

As this analysis suggests, the Court’s decision in Vartelas v. Holder is not likely to have a broad impact.  It will ensure that brief foreign trips are possible for lawful permanent residents with criminal convictions entered before 1996.  There is little in Vartelas that suggests that it would have much of an impact beyond the case at hand in terms of immigration law, statutory interpretation, or administrative law.  Rather, the Court, as it has in other recent immigration cases, has tended to follow the same general approaches pursued in other types of cases.