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Brandeis University Law Journal 2023-2024, Volume 11

“Decisions We Do Not Like”: Flag Desecration Case Law

and the Culture War

Jack Granahan541

The years following the Reagan Administration were defined
by a newfound American cultural conservatism. The First
Amendment’s protection of flag desecration as a form of
symbolic speech was one of the most divisive issues in
American politics, and it comprised a major facet of the
cultural conflict between liberals and conservatives.542
Although the Supreme Court issued several conservative
rulings on cultural issues at this time, the decisions of Texas v.
Johnson (1989) and United States v. Eichman (1990) did not
follow this trend. This paper analyzes the extent to which the
Supreme Court in general, and the Court’s conservative wing
in particular, repudiated culture war pressures to uphold
constitutional civil liberty.

I. Introduction

During the 1992 Republican National Convention
(RNC), presidential candidate and traditionalist conservative
stalwart Pat Buchanan gave a speech in which he described the
political division of the United States as “a cultural war, as
critical to the kind of nation we will one day be as was the Cold
War itself,” and called upon Republican voters to “take back
[their] culture, and take back [their] country.”543 According to
Buchanan, this marked an increased political relevance of
cultural issues, which positioned traditionalist, nationalist, and

543 Collins, Transforming America, 171.
542 Henderson, “Today’s Symbolic Speech Dilemma,” 534.
541 Brandeis University Undergraduate, Class of 2026.

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religious conservatives against countercultural, secular, and
multicultural liberals.544

Over three decades later, America still appears to be in
the midst of a culture war. In the 2022 U.S. midterm elections,
three prominent cultural issues—abortion, gun policy, and
parental oversight of education—held special significance in
the eyes of voters, with over half of registered voters
considering these issues to be “very important.”545

The shift of American politics toward a focus on the
cultural issues Buchanan described can be traced back ten to
twenty years prior to his RNC speech. Following the
conservative backlash against the counterculture movement
during the Nixon era, American politics experienced a
liberalization under Gerald Ford and Jimmy Carter’s
presidencies. Shortly thereafter, the presidency of Ronald
Reagan ushered in a period of increased conservatism,
religious faith, and American patriotism. Increased reverence
for the American flag was indicative of the Reagan era
resurgence of patriotism—one of the most prominent facets of
the culture war.546 Conversely, desecration (usually by burning)
of the American flag became a symbol for some of Reagan’s
political opponents.547

With few exceptions, the holdings of cases heard by the
late Burger Court and early Rehnquist Court overwhelmingly
took traditionalist stances on cultural issues. In the 1986 case
of Bowers v. Hardwick, which upheld Georgia’s criminal
statute prohibiting sodomy, Chief Justice Warren Burger
appealed to traditional perceptions of sexuality. More
specifically, he pointed to the Blackstonian view of
homosexuality as an “infamous crime against nature,” stating

547 Goldstein, Flag Burning and Free Speech, 44.
546 Hunter, Culture Wars, 147.

545 Schaeffer and Green, “Key Facts about U.S. Voter Priorities Ahead of the
2022 Midterm Elections.”

544 Ibid, 171.

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that “to hold that the act of homosexual sodomy is somehow
protected as a fundamental right would be to cast aside
millennia of moral teaching.”548 Although it upheld Roe v.
Wade’s federal protection of reproductive rights, the Supreme
Court’s 1992 holding in Planned Parenthood v. Casey also
rolled back many of Roe’s provisions and created additional
obstacles for those seeking abortions.549 In his concurrence,
Chief Justice William Rehnquist compared abortion to the
other traditional vice of bigamy, “with which entire societies of
reasonable people disagree.”550 The Supreme Court’s
traditionalist streak during and after the peak of the Reagan era
was indicative of a “spiteful kulturkampf” (or cultural clash),
motivated by religious and national conservative values.551 The
Supreme Court’s decisions in Texas v. Johnson and United
States v. Eichman are unique in that, unlike in cases regarding
other cultural issues, they rejected the application of cultural
conservatism to their jurisprudence in favor of protecting the
constitutional rights of Americans.

II. History of Flag Customs

Although reverence for the American flag is usually
seen as ubiquitous in the United States, this was not the case
for much of the country’s history. In the decades following the
American Revolution, even the United States military did not
fight under the flag, and the “demand for flags was so low that
no private company manufactured them until after 1845.”552 In
fact, it was not until the Civil War that the American flag
received its current reputation, as it was Union veterans of the

552 Goldstein, Flag Burning and Free Speech, 1.
551 Schulman, “Kulturkampf and Spite,” 62.
550 Ibid.

549 Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674, 112 S.
Ct. 2791 (1992).

548 Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841
(1986).

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Civil War who founded the Flag Protection Movement (FPM)
in the 1890s.553 This movement was a conglomeration of
organizations that sought to prevent the flag from being
desecrated, commercialized for profit, or otherwise
disrespected.

The first state law banning flag desecration was enacted
in South Dakota, in 1897.554 By 1932, every state had a ban on
flag desecration.555 In the first half of the 20th century,
approximately two dozen individuals were prosecuted for flag
desecration, most of whom committed such acts in protest of
American entry into World War I.556 However, only one of
these prosecutions, that of New York clergyman Bouck White
in 1916, involved the burning of the flag, which is generally
considered the gravest offense against the flag.557

Flag desecration, particularly flag burning, made a
resurgence in the late 1960s, following the deployment of
American troops in the Vietnam War. This protest was
accompanied by a spike in popularity for the anti-establishment
counterculture movement.558 In response, Congress passed the
Flag Protection Act of 1968, a federal statute that banned
“publicly mutilating, defacing, defiling, burning, or trampling
upon” the American flag.559 Shortly after the passage of this
law, the American flag became, as described by a 1970 Time
story, “the emblem of disunity.”560 Many cultural liberals saw
the desecration of the flag as a symbol of protest, whereas their
conservative counterparts saw the flag itself as a powerful
symbol of traditional American culture.561 The conservative

561 Ibid, 23.
560 Goldstein, Flag Burning and Free Speech, 24.
559 H.R.10480 - 90th Congress (1967-1968).
558 Goldstein, Flag Burning and Free Speech, 23.
557 Goldstein, Flag Burning and Free Speech, 27.
556 Guenter, The American Flag, 1777-1924, 167–169.
555 Guenter, The American Flag, 1777-1924, 144.
554 Codified Law 22-9-1.
553 Ibid, 7.

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Reagan Revolution of the 1980s coincided with the increased
flying of the American flag.562 As Reagan-era American
patriotism eclipsed the counterculture movement’s skepticism
of the idealist American vision, so too did reverence for the
flag eclipse disdain for the flag. This is perhaps why so many
Americans had such visceral reactions to flag burnings,
including the one by Gregory Lee Johnson on August 22, 1984.

III. Background of Texas v. Johnson

The 1984 RNC in Dallas, Texas, was met with
left-wing political demonstrations against President Reagan.
One particular protest was carried out by the Revolutionary
Communist Party (RCP), an anti-capitalist organization that
“advocated violent revolution in the United States,”
particularly in light of the rise of Reagan-era nationalist
conservatism.563 At the end of the protest, RCP member
Gregory Lee Johnson set an American flag, in his possession,
on fire.564 Johnson’s disdain towards the American flag was
certainly a product of his reaction to cultural conservatism. In
his own words, Johnson saw “a need to condemn and
repudiate” Reagan’s “belligerent American patriotism” by
“burning the flag of the empire.”565 Johnson also compared
Dallas, which had “flags draped all over the place,” to “a
modern Nuremberg Rally.”566

Johnson was convicted under Texas’s flag desecration
law and sentenced to one year in prison and a $2,000 fine.567
He subsequently appealed his case to the Texas Supreme Court,

567 Taylor, “The Protection of Flag Burning as Symbolic Speech and the
Congressional Attempt to Overturn the Decision,” 1477.

566 Ibid.
565 Johnson, Gregory Lee Johnson Interview.

564 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

563 Goldstein, Flag Burning and Free Speech, 44.
562 Hunter, Culture Wars, 147.

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which struck down the state’s law and vacated Johnson’s
conviction.568 When Texas appealed to the U.S. Supreme Court,
famed civil liberties attorney William Kunstler defended
Johnson. Kunstler’s defense hinged upon the First Amendment
to the Constitution, which states that “Congress shall make no
law [...] abridging the freedom of speech.”569 In previous cases,
however, the Supreme Court had ruled that speech can be
restrained when it is “likely to produce a clear and present
danger of a serious substantive evil that rises far and above
public inconvenience, annoyance, or unrest.”570

Kunstler’s argument explained that flag desecration,
while controversial and inflammatory, did not produce a clear
and present danger.571 Kunstler cited West Virginia State Board
of Education v. Barnette, a 1943 Supreme Court ruling that
held students could not be legally compelled to recite the
Pledge of Allegiance to the American flag in their
classrooms.572 The Barnette decision specifically held that
mandating respect for the flag “cannot be justified as a means
of meeting a ‘clear and present danger’ to national unity,” with
Justice Robert Jackson famously opining that “compulsory
unification of opinion achieves only the unanimity of the
graveyard.”573

According to Kunstler, Barnette and Johnson shared the
same premise, and if the government “can’t order you to salute
the flag,” it also “can’t order you to do all these obeisances
with relation to the flag,” such as not burning it.574 In
addressing Chief Justice William Rehnquist, who was “easily

574 Texas v. Johnson.

573 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L.
Ed. 1628, 63 S. Ct. 1178 (1943).

572 Ibid.
571 Texas v. Johnson.

570 Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 2d 1131, 69 S. Ct. 894
(1949).

569 Constitution Annotated.
568 Ibid.

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the most conservative member” on the bench at the time,
Kunstler stated that the predicament created by Johnson’s
burning of the flag was exactly what the First Amendment was
written to protect.575 Kunstler reasoned that “to hear things or
to see things that we hate test[s] the First Amendment more
than seeing or hearing things that we like [...] it wasn’t
designed for things we like.”576

District Attorney Kathi Drew, who argued on behalf of
the state of Texas, pushed back against Kunstler’s reasoning.
While being questioned by Justice Antonin Scalia, Drew stated
that the “preservation of the flag as a symbol of nationhood and
national unity is a compelling and valid state interest,” and the
flag desecration law was crucial to preventing a “breach of the
peace.”577 Drew also attempted to frame the American flag’s
status as one transcending private property ownership in favor
of being “this nation’s cherished property,” to which Justice
Scalia responded, “I never thought that the flag I owned is your
flag.”578 This was the first indication of Scalia’s hesitancy to
rule on behalf of traditional patriotic values in Johnson, despite
his conservative approach to jurisprudence. He was not
convinced that the collective interest of the state outweighed
the personal agency of the individual burning the flag.

IV. Politics of the Rehnquist Court

For William Kunstler, arguing before the Supreme
Court in Texas v. Johnson was an uphill battle. At the time of
this case, the judicial branch of the federal government was not
immune to the culture wars. In his two terms, President Reagan
appointed more federal judges than any other American
president, and the Supreme Court was no exception. Three

578 Ibid.
577 Ibid.
576 Texas v. Johnson.
575 “Biography: Chief Justice William Rehnquist.”

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conservative Supreme Court justices—Anthony Kennedy,
Sandra Day O’Connor, and Antonin Scalia—were appointed
by Reagan, while the Nixon-appointed William Rehnquist had
been elevated to the position of Chief Justice in 1986.579

Additionally, the Ford-appointed John Paul Stevens,
while known for his more liberal tendencies, fell squarely
within the conservative wing of the Supreme Court on
questions of American patriotism.580 Stevens, an outspoken
World War II veteran, gave an emotionally charged response to
Kunstler’s argument that flag desecration constituted free
expression. During these exchanges with Kunstler, Stevens
reportedly “turned red and was clearly quite angry.”581 The
reliably centrist Byron White similarly had a history of ruling
conservatively on flag use cases, having previously joined
Rehnquist’s dissent in the 1974 case of Spence v. Washington.
In Spence, the Supreme Court held that adorning an American
flag with peace symbols was a constitutionally protected form
of free speech.582 This left three liberal justices—Harry
Blackmun, William Brennan, and Thurgood Marshall—for
Kunstler to rely on, compared to the six justices who would
ostensibly be eager, as evidenced by their past decisions
regarding cultural issues, to reinstate the conviction of a man
who had committed, what many had deemed to be, the most
egregious offense against the American flag.583

V. The Johnson Decision

On June 21, 1989, the Supreme Court handed down its
decision in Texas v. Johnson. In an unexpected rebuke of
culture war conservatism, the ruling was 5-4 in favor of

583 Ibid, 98.
582 Ibid, 99.
581 Ibid, 95.
580 Goldstein, Flag Burning and Free Speech, 106–107.
579 Hunter, Culture Wars, 251–252.

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Gregory Lee Johnson. As expected, Rehnquist, O’Connor,
Stevens, and White sided with the state of Texas and voted to
reinstate Johnson’s conviction for flag desecration. Anthony
Kennedy and Antonin Scalia, however, defected from their
conservative colleagues to side with the liberal wing of the
Court in opposition to the legal prohibition of flag
desecration.584 Justice William Brennan wrote the opinion for
the majority, in which he applied several legal standards to
Texas’s flag desecration law.585

First, Brennan clarified that Johnson’s burning of the
American flag, especially outside of a political convention in
protest of a political action or entity, constitutes “expressive
conduct” of an “overtly political nature.”586 Though Johnson
himself had uttered no words in the process of setting the flag
alight, he had, in Brennan’s view, made a powerful enough
non-verbal statement for the First Amendment to be
applicable.587 Brennan also discredited Kathi Drew’s testimony
on behalf of the state of Texas under the O’Brien test. The
O’Brien test stipulates that, for the government to prohibit an
act of symbolic speech, there must be a “legitimate
governmental interest” in doing so that “is unrelated to
restricting expression.”588

This test originated from O’Brien v. United States, a
1968 case that held that the First Amendment did not protect
draft card burning because such an act, while expressive,
interfered with the state interest of raising a military force via
conscription.589 Therefore, to uphold the Texas statute would

589 Taylor, “The Protection of Flag Burning as Symbolic Speech and the
Congressional Attempt to Overturn the Decision,” 1479–1480.

588 Henderson, “Today’s Symbolic Speech Dilemma,” 550–551.

587 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

586 Goldstein, Flag Burning and Free Speech, 103.
585 Ibid.

584 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

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require the state to prove that flag desecration impedes the
government’s ability to further its interests. Upon analyzing the
purported interest of the state of Texas in preventing a breach
of the peace, the Supreme Court found that Johnson’s burning
of the flag did not increase the risk of such an event, nor did
Texas’s legal counsel even attempt to prove such a risk.590

Brennan’s opinion also challenged the supposed
importance of the Texas law in maintaining “nationhood and
national unity,” which the Supreme Court found to be an
insufficient interest, due to the inherently expressive nature of
opposing such a form of patriotism.591 Brennan wrote that the
motive behind the Texas law was instead to prohibit an action
that an audience could take “serious offense” to, a concern that
Brennan countered by pointing out that the “bedrock principle
underlying the First Amendment” is that “the government may
not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.”592

VI. Justice Kennedy’s Concurrence

Justice Anthony Kennedy’s concurrence in Texas v.
Johnson was perhaps the most powerful indicator of the case’s
rejection of the culture war. Agreeing with Brennan’s definition
of flag burning as a form of constitutionally protected political
expression, Kennedy emphasized that “the hard fact is that
sometimes we must make decisions we do not like. We make
them because they are right, right in the sense that the law and
the Constitution, as we see them, compel the result.”593 Justice
Kennedy, a Reagan-appointed conservative, made no secret of
his opposition to flag desecration. However, he also firmly

593 Henderson, “Today’s Symbolic Speech Dilemma,” 573.

592 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

591 Ibid, 642.
590 Birkett, “Flag Desecration Statutes after Texas v. Johnson,” 640.

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argued that “the flag is constant in expressing beliefs
Americans share, beliefs in law and peace and that freedom
which sustains the human spirit,” and that “it is poignant but
fundamental that the flag protects those who hold it in
contempt.”594 Despite his own disgust with the practice of flag
burning, he acknowledged that the law is not to be solely based
on his own personal views, and that the First Amendment’s
protection of free expression had been settled long before
Gregory Lee Johnson burned the flag.

VII. Dissenting Opinions

Chief Justice William Rehnquist, joined by Justice
Sandra Day O’Connor and Justice Byron White, wrote the
primary dissenting opinion. The Chief Justice’s dissent rejected
the overtly legal angle to flag desecration law taken by the
majority, in favor of an emotionally charged exaltation of the
American flag as a unique symbol deserving special legal
protection.595 Most importantly, Chief Justice Rehnquist
disagreed with the premise that the flag represented “simply
another ‘idea’ or ‘point of view’ competing for recognition in
the marketplace of ideas.”596 Instead, he claimed that “millions
and millions of Americans regard it with an almost mystical
reverence” and a “uniquely deep awe and respect” that would
create a legitimate interest under the O’Brien test.597 Sentiment
like that of the Chief Justice was well at home in the 1980s; as
a result of the culture war, the American flag was
“monopolized” as a “symbol of legitimacy” for the
conservative movement.598 Among an American populace that

598 Hunter, Culture Wars, 147.
597 Goldstein, Flag Burning and Free Speech, 106.
596 Ibid.

595 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

594 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

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had elected Ronald Reagan president twice in a row in
landslide victories, it is likely that very few individuals would
not take offense to the destruction of the American flag.599

Following this surge of American patriotism, Justice
John Paul Stevens wrote a separate dissenting opinion that
decried the majority’s belief that the flag was but an
expendable symbol of a political ideology. A testament to
Justice Stevens’ military service and immense patriotism, this
dissent drew heavily on military iconography, stating that the
flag, which had motivated “the Philippine Scouts who fought at
Bataan and the soldiers who scaled the bluff at Omaha Beach,”
was “itself worthy of protection from unnecessary
desecration.”600 In contrast with the conservatives of the
majority, Stevens, a justice with moderate
conservative-to-liberal tendencies, heavily incorporated
cultural conservatism in his decision.601

VIII. Reactions to Johnson

The Supreme Court’s ruling in Texas v. Johnson, which
invalidated all state laws prohibiting flag desecration, received
nearly instantaneous backlash. According to a Washington,
D.C. dispatch from the day following the decision, “citizens
across America were outraged by the Supreme Court decision
yesterday ruling that flag burning is not a crime.”602 Some

602 Hunter, Culture Wars, 28.

601 There is academic skepticism that cultural conservative assumptions are
able to fully explain Stevens’ dissent. I am grateful to Professor Daniel
Breen of the Brandeis University Legal Studies Department for pointing out
that Justice Stevens’ use of cultural conservatism is not the most important
or heaviest part of this descent. To read more on why this skepticism is
warranted, see the words of one of his former clerks: “The Least Popular
Dissent,” SCOTUSblog (blog), May 4, 2010,
https://www.scotusblog.com/2010/05/the-least-popular-dissent/.

600 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

599 Goldstein, Flag Burning and Free Speech, 108.

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opponents of the decision went as far as “gather[ing] on the
steps of the high court… to burn a mock Supreme Court
justice’s robe.”603

On the night of the decision, Peter Jennings told ABC
evening news viewers that “there are very few Supreme Court
decisions which we can imagine evoking such a gut reaction as
this one,” while a USA Today poll taken two days after the
Johnson decision found that “69 percent [of Americans]
supported a constitutional amendment” prohibiting flag
desecration.604 President George H.W. Bush stated that the
Supreme Court’s decision to effectively legalize the
desecration of a “banner of freedom” was “wrong, dead
wrong.”605 Meanwhile, the House of Representatives voted
411-15 to condemn the ruling and the Senate voted 97-3 to
express “profound disappointment” with the Supreme Court.606

Although the Johnson decision struck down all
state-level flag desecration statutes, it did not preclude the
federal government from acting on the issue. Both houses of
Congress quickly moved to legally circumvent Johnson, with
Jack B. Brooks (D-TX) leading the charge in the House of
Representatives and Joseph R. Biden (D-DE) in the Senate.607
After initial arguments over whether to introduce a
constitutional amendment or a more feasible federal statute,
Representative Brooks and Senator Biden each proposed a bill
to amend the Flag Protection Act of 1968 in their respective
chambers. To avoid a challenge similar to Johnson, the Flag
Protection Act of 1989 amended the 1968 Act to criminalize
flag desecration in the name of any ideology. The Flag

607 Ibid, 115.
606 Goldstein, Flag Burning and Free Speech, 114.
605 Henderson, “Today’s Symbolic Speech Dilemma,” 564.
604 Goldstein, Flag Burning and Free Speech, 108–112.
603 Ibid, 28.

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Protection Act of 1989 passed in both houses, before President
Bush allowed it to pass without signing it.608

IX. United States v. Eichman Tests the Johnson Decision

The immense public backlash to the Johnson ruling
may suggest that the decision was a regrettable mistake by the
Supreme Court. This possibility was soon eliminated when the
Flag Protection Act of 1989 received its first test. On the day of
the law’s codification into federal law, Gregory Lee Johnson
and seven others burned American flags in protest of the law in
Washington, D.C. and Seattle, Washington.609 All eight were
charged with violating the 1989 law, though charges against
Johnson were dropped after witness testimony confirmed that
his flag had not ignited.610 Just as supporters and opponents of
the Flag Protection Act had planned, the case was appealed to
the Supreme Court, with the case being submitted as United
States v. Eichman (Johnson’s fellow activist, Shawn Eichman,
was listed as the primary appellee).611

After almost a year of the public relations firestorm that
had resulted from the Johnson decision, it certainly would not
have been surprising for any of the five justices who had voted
with the majority—especially a conservative justice who had
only tentatively sided with Johnson—to change their mind on
the flag desecration issue. Nevertheless, on June 11, 1990, the
Supreme Court once again ruled 5-4 that the flag desecration
ban was unconstitutional, and every justice voted the same as
in Texas v. Johnson.612 William Brennan’s majority opinion in
Eichman was nearly identical to his Johnson opinion,
slamming the Flag Protection Act as “suppression of free

612 Goldstein, Flag Burning and Free Speech, 206.

611 United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110 S. Ct.
2404 (1990).”

610 Ibid, 175.
609 Goldstein, Flag Burning and Free Speech, 174.
608 Text - H.R.2978 - 101st Congress (1989-1990).

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expression.”613 John Paul Stevens’s Eichman dissent also
mirrored his Johnson dissent, claiming that the federal
government, like Texas’s state government, “has a legitimate
interest in protecting the symbolic value of the American
flag.”614

Since the Supreme Court’s decision in Eichman, the
focus of supporters of a flag desecration ban has shifted
towards passing a constitutional amendment to circumvent
Johnson and Eichman. Such an amendment would supersede
the First Amendment to prohibit flag desecration, exempting
the ban from the O’Brien test. The most recent of these
attempts was in 2006 when Orrin Hatch (R-UT) introduced a
Senate resolution proposing an amendment to ban flag
desecration, which would ultimately fall one vote short of the
two-thirds majority needed to pass in the Senate.615

X. Conclusion

Shortly before his 1990 retirement from the Supreme
Court, William Brennan expressed his disappointment with the
Supreme Court’s shift towards cultural conservatism but also
stated firmly that he was “not discouraged to the point of
giving up [...] after all, Kennedy and Scalia joined me on the
flag-burning case, for God’s sake.”616 In the words of Gregory
Lee Johnson, “being able to criticize the government is at the
heart of the First Amendment—without that, the First
Amendment really means nothing.”617 This was the view of
flag desecration taken by five members of the Supreme Court
in Texas v. Johnson and United States v. Eichman, not the least
surprising of whom were Anthony Kennedy and Antonin

617 Johnson, Gregory Lee Johnson Interview.
616 Goldstein, Flag Burning and Free Speech, 101.
615 S.J.Res.12 - 109th Congress (2005-2006).
614 Ibid.

613 United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110 S. Ct.
2404 (1990).

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Scalia. For these two conservative, Reagan-appointed justices
to join the liberal wing of the Supreme Court in affirming a
constitutional civil liberty, not once, but twice, was no
accident.

By choosing to rule in favor of Gregory Lee Johnson
and later Shawn Eichman, et. al., Kennedy and Scalia were
able to set their own conservative leanings aside to rule in a
way that they believe most appropriately interpreted the First
Amendment. To paraphrase Kennedy, the two made a decision
they did not like, but in doing so made the right decision,
compelled by the law and the Constitution.618 Thus, as the
Supreme Court becomes more motivated by partisan politics,
perhaps the sitting justices should heed the words of Anthony
Kennedy and make more decisions they do not like.

618 Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989).

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Cases Cited

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Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d
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Texas v. Johnson, 491 US 397 (1989).
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2533 (1989).
United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110

S. Ct. 2404 (1990).
West Virginia State Board of Education v. Barnette, 319 U.S.

624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943).

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