LawJournalVolume11 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. 148 Brandeis University Law Journal 2023-2024, Volume 11 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. 149 Brandeis University Law Journal 2023-2024, Volume 11 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). 150 Brandeis University Law Journal 2023-2024, Volume 11 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. 151 Brandeis University Law Journal 2023-2024, Volume 11 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. 152 Brandeis University Law Journal 2023-2024, Volume 11 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. 153 Brandeis University Law Journal 2023-2024, Volume 11 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.” 154 Brandeis University Law Journal 2023-2024, Volume 11 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. 155 Brandeis University Law Journal 2023-2024, Volume 11 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). 156 Brandeis University Law Journal 2023-2024, Volume 11 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. 157 Brandeis University Law Journal 2023-2024, Volume 11 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). 158 Brandeis University Law Journal 2023-2024, Volume 11 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. 159 Brandeis University Law Journal 2023-2024, Volume 11 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. 160 Brandeis University Law Journal 2023-2024, Volume 11 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). 161 Brandeis University Law Journal 2023-2024, Volume 11 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). 162 Brandeis University Law Journal 2023-2024, Volume 11 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). 163 Brandeis University Law Journal 2023-2024, Volume 11 Bibliography Birkett, William C. “Flag Desecration Statutes after Texas v. Johnson - A Legislative Solution to a Political Problem.” Southern Illinois University Law Journal 14, no. 3 (1990 1989): 625–56. Collins, Robert M. Transforming America: Politics and Culture in the Reagan Years. New York: Columbia University Press, 2007. Congress.gov. “H.R.2978 - 101st Congress (1989-1990): Flag Protection Act of 1989.” Legislation, October 28, 1989. 10/28/1989. https://www.congress.gov/bill/101st-congress/house-bil l/2978. Congress.gov. “S.J.Res.12 - 109th Congress (2005-2006): A Joint Resolution Proposing an Amendment to the Constitution of the United States Authorizing Congress to Prohibit the Physical Desecration of the Flag of the United States.” Legislation, June 27, 2006. 06/27/2006. https://www.congress.gov/bill/109th-congress/senate-jo int-resolution/12/. 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