Has Hill v. Colorado Already Been "Abandoned" Like Lemon?

Justice O’Connor once explained that ”no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (I think a similar principle applies to the Eighth Amendment; more on Glossip later.) In the lead-up to Dobbs, I listed a host of precedents in which the law was distorted to protect Roe. One such case was Hill v. Colorado. The Court upheld a “buffer” zone around an abortion clinic, which prevented people from expressing pro-life views. Hill was always inconsistent with the Court’s other forum cases, but abortion was just too important.

In the wake of Dobbs, there have been several petitions urging the Court to overrule Hill. Indeed, local governments have attempted to manipulate the Court’s jurisdiction to save the precedent. (I’m looking at you Westchester County!) But the Court has continued to deny those petitions.

Yesterday, the Supreme Court denied yet another case that sought to overrule Hill. In Coalition Life v. City of Carbondale, Justice Alito would have granted the petition, and Justice Thomas wrote a lengthy dissent from denial. Thomas repeated his usual refrain that Hill distorted First Amendment principles, and it is difficult to see what is left of Hill after Dobbs: ”Hill‘s abortion exceptionalism turned the First Amendment upside down.”

But Justice Thomas added a new spin on things. He explained that Hill has been eroded by recent cases, including McCullen v. Coakley, Reed v. Town of Gilbert, City of Austin, and (of course) Dobbs. Thomas writes, “If Hill’s foundation was ‘deeply shaken’ before Dobbs, see Price, 915 F. 3d, at 1119, the Dobbs decision razed it.” (Price v. City of Chicago was a Seventh Circuit decision by Judge Sykes, that then-Judge Barrett joined).

Thomas then draws an analogy between Hill v. Colorado and Lemon v. Kurtzman:

This trajectory calls to mind the story of Lemon v. Kurtzman, 403 U. S. 602 (1971), which had created a three-part test to determine whether a law violated the Establishment Clause. While this Court had not by any one statement overruled Lemon, for many years it either “expressly declined to apply the test” or “simply ignored it.” American Legion v. American Humanist Assn., 588 U. S. 29, 49 (2019) (plurality opinion) (collecting cases). We were never shy about Lemon‘s “shortcomings” and “daunting problems.” 588 U. S., at 49, 51. And, we eventually faulted lower courts for failing to notice that the “‘shortcomings’ associated with th[e] ‘ambitiou[s],’ abstract, and ahistorical” Lemon test had “bec[o]me so ‘apparent’ that this Court long ago abandoned” it. Kennedy v. Bremerton School Dist., 597 U. S. 507, 534 (2022) (second alteration in original). In other words, we explained, Lemon had long been dismantled by our precedents, and lower courts should have recognized its demise. Given that prior to Kennedy, a decision of the Court had never outright condemned Lemon as a “distort[ion],” Dobbs, 597 U. S., at 287, and n. 65, Hill‘s abandonment is arguably even clearer than Lemon‘s.

Woah! Should courts recognize that Hill v. Colorado has already met its demise? Does Justice Thomas think that lower courts now have a green light to treat Hill v. Colorado as “abandoned”? To be sure, Rodriguez de Quijas v. Shearson/American Express Inc. (1989) suggests that the answer is clearly no: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” But did Kennedy v. Bremerton abrogate Rodriguez de Quijas? To be sure, plenty of Courts disregarded Baker v. Nelson in the wake of Windsor, but the precedential value of Baker was always questionable from the outset. In any event, I think Dobbs demonstrated that precedents on precedent are not entitled to stare decisis value. So maybe the Court has moved beyond Rodriguez de. Quijas?

Of course, Justice Thomas wrote a solo dissent. No one joined him. Even Justice Alito, who would have granted the petition, did not join Thomas’s opinion.

I think it is unlikely the Court will ever formally overrule Hill. Despite Thomas’s appeal to Justice Barrett, she did not budge. And really, is there any doubt why the number of summary reversals, as well as cert grants, are down? It is Justice Barrett. I made this point nearly a year ago:

Justice Kavanaugh, by contrast, has signaled that he is more open to cert grants. I’ve taken notice of the random dissents from denial of cert on the order list for low-profile cases. Those dissents show that he carefully scrutinizes all of the petitions, and is looking for issues to grant. By my count, Barrett has only dissented from the denial of certiorari once in Waleski v. Montgomery, McCracken, Walker & Rhoads (2023). This case presented a nerdy FedCouts question about “hypothetical jurisdiction”–not exactly something of national importance. (She joined Justice Thomas’s dissent, along with Justice Gorsuch.) In most cases, if Barrett is willing to grant, there are almost certainly three more votes to join her.

See also this post.

Nothing has changed since 2024.

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