One Vote Away: How a Single Supreme Court Seat Can Change History

by Ted Cruz

  State SGs are typically appellate specialists. Often, they are former Supreme Court clerks who know the Court well. And they lead offices of extremely talented appellate lawyers. In 2002, when the newly elected Abbott offered me the SG position, I was only thirty-one years old. I thought (hoped!) I could do the job well, but at the time I had only ever argued two cases in court, neither of which was before the Supreme Court. Abbott took a chance on me, offering to make me the youngest SG in the country.

  I asked my old boss Chief Justice Rehnquist if I should take it. At the time, Heidi was working in the Bush White House, she loved her job, and taking the appointment would necessitate our commuting cross-country, not an easy proposition. The Chief was emphatic that I should take the post. States are the second most frequent litigants before the Court, behind only the U.S. government. The Chief told me that the rise of state SGs had dramatically improved the quality of appellate advocacy at the Court. Previously, much of it had been quite shoddy; “California is just terrible,” he observed.

  Fortunately, Abbott was a much more skilled appellate lawyer than most state AGs, and he was committed to excellent appellate advocacy. Abbott himself had spent over a decade as a judge, both as a state trial judge and as a Texas Supreme Court justice. Abbott is not a micro-manager; he set broad objectives, but he didn’t try to run the day-to-day operations of Texas’s Office of the Solicitor General.

  All that being said, Abbott had made clear when he appointed me that he wanted to argue one Supreme Court case and that I should be on the lookout for the best one for him to argue. When the Supreme Court granted cert in Van Orden, I went to Abbott and said that this was the one. It was an area of immense importance, with a discrete area of jurisprudence, and we would likely have the United States Solicitor General Paul Clement arguing alongside us.

  Abbott agreed, and in the weeks before oral argument, he cleared his calendar of the myriad commitments that typically fill an attorney general’s day. He spent hour after hour after hour reading Supreme Court cases, reading the briefs, and talking with me and my team of lawyers about the issues and about our strategy in the case.

  I organized several moot courts for General Abbott. One that I remember particularly well was in Washington, D.C. Around the table sat a murderer’s row of Supreme Court advocates. Paul Clement, the U.S. SG and one of the most experienced advocates in the country, was there. Also at the table was Jay Sekulow, recently President Donald Trump’s lawyer during the impeachment trial and, before that, one of the most highly regarded Supreme Court religious-liberty advocates in the country. Several other very experienced Supreme Court lawyers joined us, as well.

  The moot lasted over an hour. Everyone had withering questions for Abbott—so much so that I was nervous that my boss would be annoyed at me for having arranged such a bare-knuckles moot. Fortunately, as a consummate professional, he was thankful that the rigorous questioning had ensured he was fully prepared for the main event.

  The argument came on March 2, Texas Independence Day. The night before, I advised General Abbott: if the argument started going poorly and it seemed we might not prevail, he could simply raise his fist in the air and say, “Remember the Alamo!”

  That morning began with a brief moment of humor. As Abbott and I were sitting at counsel’s table, Paul Clement was at the table next to us. Moments before the Supreme Court justices were to ascend the dais at 10:00 a.m. sharp, Paul leaned over to Abbott and me and whispered loudly, “We figured out a theory to win this case.” Abbott and I were, of course, quite interested. Paul continued, “We’re going to argue that the Ten Commandments… are international law.” The joking reference, of course, was to the rising pattern of some Supreme Court justices—especially those on the left—relying on international law, wrongly in most instances, to help adjudicate constitutional cases.

  General Abbott gave a very strong argument—so much so that it prompted something that rarely occurs. He was praised from the bench by the justices themselves. My former boss Chief Justice Rehnquist was gravely sick at the time, and he would live for only a few more months. He was not on the bench to preside, so the argument was presided over instead by Senior Associate Justice John Paul Stevens. At the close of General Abbott’s oral argument, Justice Stevens thanked General Abbott for demonstrating that one needn’t be at the podium to give an excellent argument. That reference was, of course, to the fact that Greg Abbott is confined to a wheelchair and has been for three decades, ever since he was tragically injured by a falling tree-branch while jogging and was paralyzed from the waist down.

  The decision of the Court in Van Orden v. Perry came down on the last day of the term, and it was the last decision the Court issued that year. By a vote of 5–4, Texas prevailed.

  The plurality opinion was authored by Chief Justice Rehnquist. There was a deep sense of justice and completeness in Rehnquist’s authoring the opinion. As an associate justice, Rehnquist had been one of the original dissenters in Stone v. Graham, a 1980 case in which the Supreme Court struck down the display of Ten Commandments in public schools.

  And Van Orden, upholding the display of the Ten Commandments, would be the last judicial opinion William Hubbs Rehnquist ever wrote. In his plurality opinion, the Chief Justice described the Supreme Court’s Establishment Clause jurisprudence as “Janus-like,” facing two directions at once. One line of Supreme Court cases views the public acknowledgement of faith and God with deep skepticism and sees the courts as a tool to scrub the public square of any acknowledgment of God Almighty. The other line of cases, many of which were authored by Chief Justice Rehnquist, recognizes that acknowledging faith, God, and our Judeo-Christian heritage is entirely consistent with religious liberty—and, indeed, protects every individual’s freedom of conscience.

  Liberal judges have long viewed the Free Exercise Clause and the Establishment Clause as in conflict with one another. In so doing, these black-robed activists have been eager to read public displays of religion as infringing upon the Constitution, and the Establishment Clause as a Lysol disinfectant for removing all faith from the public square.

  There was an irony to the end result in Van Orden. I had told General Abbott about our extensive efforts to craft a litigation strategy targeted precisely to earn Justice O’Connor’s vote. As it turned out, that plan was a dismal failure. Justice O’Connor voted to strike down the Ten Commandments monument in Texas. Every argument that I had so carefully crafted to appeal to O’Connor missed the mark, but, as it so happened, they persuaded Justice Stephen Breyer instead.

  Texas prevailed in Van Orden because Justice Breyer, a Bill Clinton appointee and a reliably liberal jurist, made the decision to split the baby in half. In Van Orden, Texas won. But in McCreary, the accompanying Kentucky case whose opinion came down on the very same day, Kentucky lost.

  As with so many Establishment Clause cases, the precise facts and context mattered (which is why we spent so much time and effort correcting petitioner’s misrepresentations of the facts in Van Orden). And, in the Kentucky case, local politicians had made a number of foolish and ill-advised statements when their Ten Commandments display was erected that the Court deemed impermissible.

  So in the end, our strategy of acquiescing to the Supreme Court on the writ of certiorari was vindicated. Had the Supreme Court taken only the Kentucky case, the result that day would have been a 5–4 loss for public displays of Ten Commandments monuments. That precedent, in turn, could have resulted in our monument and the hundreds of others across the country’s being torn down.

  But, instead, the Van Orden precedent proved the far more important of the two; the Texas monument still stands, as do other Ten Commandments monuments nationwide.

  There is another note of irony to the tale of Van Orden v. Perry. As we stood in the Supreme Court courtroom arguing whether or not it was permissible to display the Ten Commandments on government property, the Supreme Court justices were surrounded by no fewer than forty-three images of the Ten Commandm
ents. There are forty images of the Ten Commandments etched up and down the bronze gates running along both sides of the courtroom. There are two more images of the Ten Commandments carved onto the bottom panel of the wooden doors as you exit the Court. And above the justices’ shoulders to the left is a granite frieze of great lawmakers in history, among them Moses, holding the Ten Commandments—text still in Hebrew—looking down upon them. And yet, sadly, four justices were ready to say, in effect, “bring out the chisels.”

  * * *

  The litigation against the Ten Commandments is but one example of the widespread assault on religious liberty. There are many more.

  In California, for instance, another atheist named Michael Newdow filed a lawsuit seeking to remove the words “one nation under God” from the Pledge of Allegiance. And in 2002 the Ninth Circuit Court of Appeals agreed with him, ruling that the Constitution forbids schoolchildren from reciting “one nation under God.”

  When Elk Grove Unified School District v. Newdow went to the Supreme Court, Texas led the states in defense of the Pledge of Allegiance. The amicus curiae (Latin for friend of the court) brief we authored was joined by all fifty states—every Republican and every Democratic attorney general—one of very few briefs in history to get support from every single state.

  At the same time as we were circulating our brief, I was helping lead the trial team defending the Texas redistricting plan that the Legislature had just adopted. I still remember well, during breaks in the trial, calling my fellow SGs urging them to join our brief in Newdow. The last couple of states to join, I must confess, I had some fun with, telling the SGs “you know, if your boss wants to be the only attorney general in America not to support the Pledge of Allegiance, well, that’s certainly political courage.…” They all joined.

  In our brief, we detailed the history of the Pledge of Allegiance. The text of the Pledge was adopted by Congress in 1942, and the words “under God” were added separately twelve years later. It was the height of the Cold War in 1954, and Congress added the words “under God” to illuminate a key distinction between our government and those of communist nations. Congressional Committee Reports from the time of the 1954 amendment note that, whereas the communists were “spiritual[ly] bankrupt,” our government recognized the importance of each human “endowed by [God] with certain inalienable rights which no civil authority may usurp.”

  We argued that acknowledging the Almighty was consistent with our “history and ubiquity,” as Justice O’Connor had put it in Lynch v. Donnelly, a 1984 case upholding, 5–4, the town’s Christmas nativity scene in Pawtucket, Rhode Island. As the majority opinion observed in Lynch, “[o]ur history is replete with official references to the value and invocation of Divine guidance,” including official Thanksgiving and Christmas holidays, House and Senate chaplains, the national motto “In God We Trust,” the Pledge of Allegiance, religious paintings in the National Gallery, and Moses holding the Ten Commandments on the frieze of the Court. Lynch quoted at length President Franklin D. Roosevelt’s 1944 Proclamation of Thanksgiving:

  [I]t is fitting that we give thanks with special fervor to our Heavenly Father for the mercies we have received individually and as a nation and for the blessings He has restored, through the victories of our arms and those of our Allies, to His children in other lands.… To the end that we may bear more earnest witness to our gratitude to Almighty God, I suggest a nationwide reading of the Holy Scriptures during the period from Thanksgiving Day to Christmas.

  Ultimately, the Court agreed with us unanimously. But it did so only on alternative procedural grounds, namely that because Michael Newdow was a non-custodial parent, he didn’t have standing to bring a claim on behalf of his school-age daughter. Therefore, by an 8–0 vote (Justice Scalia recused), the Court vacated the Ninth Circuit decision below.

  By avoiding the merits issue in Newdow, the Court avoided the sharp divides that typically accompany religious liberty cases. But that was the exception rather than the rule. In another major religious-liberty case I helped litigate, Salazar v. Buono—the Mojave Desert Memorial Cross case—those divisions emerged yet again.

  On a barren rock in the midst of the 1.6 million-acre Mojave Desert National Preserve, in 1934, the Veterans of Foreign Wars erected a memorial for those who gave their lives in World War I. For seven decades, this simple white Latin cross—standing alone atop Sunrise Rock—stood unmolested as a quiet testament to the bravery of so many fallen heroes.

  For decades, the memorial was tenderly cared for by Riley Bembry, himself a World War I veteran who helped erect it in remembrance of his fallen brothers. Shortly before Bembry died in 1984, he handed caretaking duties over to over to his friend Henry Sandoz and his wife, Wanda, who faithfully looked after the cross.

  But then in 2001 the American Civil Liberties Union took notice and brought a case arguing that the Constitution prohibits ever seeing the image of a cross on public land. The ACLU prevailed in federal district court and again in the Ninth Circuit Court of Appeals. As a result, the federal courts ordered that the veterans memorial be covered up with a large burlap sack, tied with an iron chain and padlock at the bottom. Later, the sack was replaced with a plywood box.

  The case went up to the Supreme Court and, along with my good friend Kelly Shackelford of the First Liberty Institute, I had the privilege of representing the Veterans of Foreign Wars, the American Legion, the Military Order of the Purple Heart, and several other veterans groups. In total, we represented over 3 million veterans nationwide, as amici (friends of the court), defending the constitutionality of the monument.

  I was no longer Texas SG at the time. I was instead in private practice at Morgan Lewis, one of the nation’s largest law firms, leading their Supreme Court and national appellate practice out of their Houston office. As a result, most of my cases were for paying clients. But this case was special. It was near and dear to my heart, and I was fighting for the veterans of our nation. And so I took the case pro bono—for free.

  The Supreme Court, as in the Ten Commandments case, was closely divided. But ultimately, in a 5–4 decision, the Court upheld the veterans memorial. And it still stands in the Mojave Desert National Preserve today. The Court’s majority opinion cited our brief a dozen times in ruling that memorials to fallen soldiers could permissibly contain religious symbols without violating the First Amendment.

  After the Court’s decision, I stood on Sunrise Rock with Henry Sandoz. It’s barren, beautiful, and totally isolated. And, rising up silently into the arid sky—sans burlap sack or plywood box—is that simple white cross memorializing our fallen heroes.

  The consequences of our victory were far-reaching. Had the plaintiffs prevailed—had the Court ordered that seventy-plus-year-old veterans memorial torn down—the next crusade to remove the thousands of crosses and Stars of David from the tombstones in Arlington National Cemetery would surely not have been far behind.

  And just as with the Ten Commandments case, we were only one vote away.

  * * *

  The legal challenges to religious liberty continue relentlessly. Before the Court today, the display of the Ten Commandments is less frequently the target of litigation—Van Orden settled that, for now at least. Instead, the main religious liberty issues to come before the Court today concern individuals trying to live according to their faith and facing legal persecution or punishment because of it.

  The First Amendment’s text protects “free exercise” of religion. But this was readily understood at the time of the American Founding as encompassing a substantially broader array of behavioral protection than more limited protections for either “worship” or “conscience.” As my old friend Judge Jim Ho of the Fifth Circuit wrote in a case earlier this year:

  The broader scope of “exercise”—in contrast to “worship” and “conscience”—indicates that, at the time of the Founding, the public would have understood the right to “free exercise” to extend beyond mere ritual and private belief to
cover any action motivated by faith. Consistent with that conclusion, Congress amended the draft language that later became the First Amendment, replacing the original phrase “rights of conscience” with the “free exercise of religion.”

  Perhaps no case illustrates that more acutely than the story of the Little Sisters of the Poor. The Little Sisters of the Poor are an order of Catholic nuns who have taken vows of poverty and pledges to help the elderly and the needy. When Congress passed Obamacare, it included within it a so-called “contraceptive mandate” that required the Little Sisters and other religious organizations to pay for contraceptives and abortion-inducing drugs for others. If they refused to do so, they faced millions of dollars in fines.

  The Little Sisters, understandably, concluded that paying for abortifacients would be inconsistent with their Catholic faith. And the Obama administration, in response, attempted to offer an alleged “compromise” by Solomonically splitting the baby. The problem is that their “compromise” did not fix the problem; it still required them to subsidize activities contrary to their faith. And so it was rejected by both the United States Conference of Catholic Bishops and the Little Sisters of the Poor.

  The mainstream media loves to lionize Pope Francis any time he expresses support for economic or environmental causes that are put forward by the left. Curiously, that same media largely ignored that when he visited the United States in 2015, Pope Francis made a point to sit down and personally meet with the Little Sisters of the Poor at their residence across the street from Catholic University in Washington, D.C. The Pope spent fifteen minutes at their home and shook hands with each of the Sisters in their chapel in order to express his “support for them in their legal battle,” a Vatican spokesman explained.