Hard Cases Make Good Judges
Sherry, Suzanna, Northwestern University Law Review
William H. Rehnquist became Chief Justice in 1986. Those of us old enough to recall the constitutional landscape before that time look back on a Court dominated by questions of equal protection, substantive due process, and free speech (as well as criminal procedure, recently spun off into a separate discipline). Cases involving federalism were virtually nonexistent, and questions of separation of powers arose infrequently. Religion cases were few and far between; the Takings Clause was invisible. What a difference two decades make.
Some of the changes can be traced to Justice Rehnquist's earliest years on the bench, when he was often a lone dissenter. In those days, he sought three primary objectives: to tear down the wall between church and state, to un-handcuff the police, and to reinvigorate John Calhoun's views on state sovereignty. All three have largely been accomplished. But what has happened in the areas on which the pre-Rehnquist Court focused? Equal protection has gone in circles, with the Court last term reaffirming the thirtyyear-old Bakke. Substantive due process has gone nowhere: The Court adheres to old precedent but seems reluctant to protect any new rights. And free speech? Once it became clear-no later than the mid-1970s-that outright government censorship of ideas was impermissible, free speech doctrine proliferated into increasingly arcane sub-areas as legislatures confronted multi-faceted and often insoluble problems, presenting the Court with complex and difficult decisions on the margins of free speech law.
Since the Rehnquist Court came into its own in 1994-what has been called the second Rehnquist Court1-the Court has not had a single pure political censorship case along the lines of Brandenburg, Tinker, or the communist cases of the 1950s. Nor has it touched its established obscenity doctrines or faced many questions about the First Amendment rights of schoolchildren, prisoners, protesters, or soldiers-the stuff of earlier Courts. Instead, this Court has ruled on a dizzying array of allegedly speech-infringing government activities, including regulation of cable TV and the Internet; attempts to make elections fairer and less dependent on money; advertising restrictions that do everything from limiting advertising to compelling contributions to advertising; punishing the disclosure of information obtained from wiretapping; and time-place-and-manner restrictions on speech from political solicitation to anti-abortion protests.
Given this breadth, it would be foolish to attempt a synthesis. Each of the topics has its own extensive scholarly literature, to which I have little of substance to add. Instead, I suggest that the Court's method of approaching these questions is exactly what one would expect under the circumstances: Having long since established first (and second and third) principles, a Court working out the mundane, detailed implications of those principles is likely to be a quintessentially pragmatist Court. The decision in each case is therefore likely to depend on context, and generalizations will be hard to find. But those same decisions are also more likely to be viable compromises that do not tend to reinforce cultural schisms.
In this Article, I will focus on three areas that illustrate this pragmatist approach: commercial speech and advertising, election regulations (other than campaign finance), and restrictions on pornography (that is, material that is sexually graphic but not legally obscene). I will argue that in each area, pragmatic considerations rather than grand principles often determine the outcome, producing some unpredictability but a just regime overall.
II. COMMERCIAL SPEECH AND ADVERTISING
Since 1976, when the Supreme Court first held that commercial speech is constitutionally protected but subject to greater regulation than noncommercial speech,2 it has straggled to define the boundaries of permissible regulation. …