A People's History of the Supreme Court

by Peter Irons

  Three days after this article appeared, “the judgment of the Court” in Casey was announced on June 29, 1992. Greenhouse had it right; O’Connor, Kennedy, and Souter voted together, and they prevailed. The headline came in the first sentence of their opinion: “Liberty finds no refuge in a jurisprudence of doubt.” The centrist justices reassured those who had doubted that Roe would survive. “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude that the essential holding of Roe v. Wade should be retained and once again reaffirmed,” they wrote.

  The centrist justices frankly acknowledged the political factors that underlay their opinion. In a fascinating history lecture, they recalled the bad old days of Plessy and Adkins, which reflected a world “recognized everywhere outside the Court to be dead.” The overruling of these decisions by Brown and West Coast Hotel had rested on new facts and new understandings of society. “In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty.” The centrist troika evoked these “changed circumstances” to underscore “the terrible price that would have been paid if the Court had not overruled” its earlier decisions. Then why not overrule Roe when Justice Blackmun’s opinion rested on “basic flaws” that slighted “the State’s interest in potential life,” as the three justices wrote? Because, they explained, the flaws win Blackmun’s trimester system had not changed the “factual underpinnings of Roe’s central holding” that abortion is a protected “liberty” right under the Constitution. More important, a whole generation of women had come to rely on Roe and its protection of abortion rights. To upset their “settled expectations” by overturning Roe would provoke even greater political turmoil than the nation had experienced during two decades of abortion wars. The centrist justices feared that a “terrible price would be paid for overruling” a decision that had stood for so long. The demands of blacks and workers required that Plessy and Adkins be overruled; the demands of women required that Roe be affirmed. These are political calculations, pure and simple, but the centrist justices insisted they had not made any “compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make” in deciding cases.

  Far below the headlines of their Casey opinion, the three justices who “reaffirmed” the “essential holding” of Roe joined with the four conservatives to sustain all but the spousal notification provision of the Pennsylvania law. They adopted O’Connor’s “undue burden” test and found that none of the other provisions placed any “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” But what restrictions on access to abortion would place a “substantial obstacle” in the entrances to doctors’ offices and clinics? After promising “to clarify what is meant by an undue burden” on abortion, the plurality offered “unnecessary health regulations” as their only guideline. This mushy statement, and the Court’s refusal to overturn Roe, left the four conservatives—Rehnquist, White, Scalia, and Thomas—fuming with frustration. Scalia turned once more to sarcasm—and the “fire” metaphor that justices love—in his dissent. “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since,” he wrote. “And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

  Justice Scalia obviously resented Justice Kennedy’s defection in Casey, particularly since Kennedy had slipped onto the Court behind the smoke that billowed around the failed nomination of Robert Bork. Scalia was not the only justice who addressed the selection of justices in his opinion. Justice Harry Blackmun lauded O’Connor, Kennedy, and Souter for “an act of personal courage and constitutional principle” in giving his Roe opinion a reprieve from execution. But he also deplored their willingness to pardon the Pennsylvania legislators who had done everything but lock the doors of abortion clinics. Like everyone else, Blackmun knew that a presidential election was little more than four months away. “I am 83 years old,” he wrote in a revealing personal statement. “I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today.”

  Justices Blackmun and Scalia differed profoundly on abortion, but they agreed on one crucial point: the Court’s decisions in future cases would depend largely on changes in its personnel, which in turn would reflect political factors and currents in public opinion. This has always been true, but never before in American history had the Court been so narrowly divided on such a significant issue that the replacement of one justice would threaten to topple a long-standing decision. In a very real sense, what the Constitution means for all the American people would depend on the views of a single person. And who that person would be depended on which presidential candidate the American people chose in November 1992. The Republican incumbent, George Bush, proclaimed his desire to overturn the Roe decision, while his Democratic challenger, Bill Clinton, was committed to protecting it from judicial reversal. In casting their presidential ballots, American, voters would probably be choosing art least one—and possibly several—Supreme Court justices who would likely serve well into the twenty-first century. This was an awesome responsibility, but one that few voters even considered before casting their ballots. In effect, the contest between Bush and Clinton became a national referendum on the Costitution, without any real debate over its provisions and their impact on the American people.

  SECTION VII

  “It Is a Cultural War”

  36

  “One Nation Under God”

  During their presidential campaigns in 1992, neither George H. W. Bush nor Bill Clinton devoted a major speech to the Constitution or the Supreme Court. Bush did tell voters in Columbus, Ohio, just a week before the election that he and Clinton had “a fundamental difference as to what should happen on the Supreme Court.” All he said about that difference was that “I don’t think the Supreme Court ought to legislate” but should simply “interpret the Constitution.” Bush added that if voters wanted to “get somebody on there to legislate with a liberal point of view,” they should vote for his opponent. Enough people took his advice to elect Clinton by a narrow margin and deny Bush a second term. Polls showed that many women who normally supported Republicans voted for Clinton because they feared a Bush-led assault on the Roe v. Wade decision. To some degree, although hard to measure, concerns about the Supreme Court affected the outcome of this closely contested election.

  Shortly after he took office, President Clinton gained his first opportunity to place his mark on the Court. Justice Byron White retired in June 1993 after thirty-one years as a civil rights liberal and criminal law conservative. His departure also removed one of the four sure votes for reversing the Roe decision, leaving Justices Rehnquist, Scalia, and Thomas with little prospect of securing the necessary fifth vote to achieve their long-sought goal. Clinton named Judge Ruth Bader Ginsburg to succeed White and to join Justice Sandra O’Connor as the Court’s second female member. Born in 1931, Ginsburg graduated Phi Beta Kappa from Cornell and became one of nine women in the 1956 class at Harvard Law School, where she was elected to the law review. But she followed her husband, a fellow law student, to New York City when he landed a job there, and completed her law degree at Columbia, also making law review and graduating at the top of her class. These credentials did not impress any Wall Street firms, most of which then hired women only as secretaries, the same kind of discrimination that Justice O’Connor had also faced. Ginsburg taught law at Rutgers and Columbia before President Jimmy Carter named her to th
e District of Columbia federal appellate bench in 1980. During her teaching years, she also created and directed the ACLU’s Women’s Rights Project and argued six gender discrimination cases in the Supreme Court, winning five. The Senate confirmed Ginsburg by a vote of 96–3, a tribute both to her impressive credentials and to the Senate’s relief, two years after the acrimony over Clarence Thomas’s nomination, at being spared another confirmation battle.

  Assured by Ginsburg’s confirmation that the Roe decision would survive his departure, Justice Harry Blackmun retired at the term’s end in 1994. President Clinton named Judge Stephen Breyer of the First Circuit Court of Appeals to fill Blackmun’s seat. Born in San Francisco in 1938, Breyer graduated from Harvard Law School, worked closely with Senator Edward Kennedy on issues like airline deregulation, and taught administrative law at Harvard before President Carter named him to the federal bench in 1980. Breyer breezed through his confirmation hearings and won Senate approval by a vote of 87–9, opposed by just a handful of the most conservative Republicans. During their first years on the Court, Justices Ginsburg and Breyer struck observers as cautious liberals, sticking to precedent whenever possible and writing careful, precise opinions that did not stake out any new constitutional ground.

  Between 1994 and 2000, the Court decided roughly seven hundred cases, few of which raised such divisive issues as abortion and affirmative action. More than a third of these cases, in fact, were decided by unanimous votes, and many involved the kinds of commercial disputes and government regulations that formed the bread-and-butter of the Court’s docket, with decisions based on common-law principles and statutory construction rather than constitutional interpretation.

  Some of the Court’s rulings during this period, however, reflected battles that stemmed from the growing “culture war” that had begun during the turbulent decade of the 1960s as hippies and antiwar protesters challenged the sexual mores and reflexive patriotism of political and religious conservatives, groups with considerable overlap in the electorate. The Roe decision in 1973 and America’s humiliating withdrawal from Vietnam in 1975 sparked a backlash that grew more intense during the next two decades. The formal declaration of hostilities came in 1992, during the Republican national convention in Houston at which President George H. W. Bush was nominated to run for a second term in the White House. Members of what pundits had dubbed the Religious Right, most of them evangelical Christians, made up less than 10 percent of the American public, but had worked hard at precinct-level politics and elected almost half of the Republican delegates. Recognizing their political clout, Bush agreed to allow several Religious Right leaders to address the convention, including Patrick Buchanan, a former speechwriter for President Nixon, who pulled out the rhetorical stops in a fervent address. “There is a religious war going on in this country,” he thundered. “It is a cultural war as critical to the kind of nation we shall be as the Cold War itself. This war is for the soul of America.” The delegates jumped to their feet and cheered, but Buchanan’s call to arms enlisted few recruits among moderate Republicans and independents, who recoiled from his martial words and swung the election to Bill Clinton.

  Supposedly insulated from political battles that raged outside its cloistered chamber, the Supreme Court became the setting during the 1990s for judicial skirmishes that were initiated by the legal battalions of the Religious Right. Pat Robertson, a Yale Law School graduate who never took the bar exam, deciding instead on television ministry as his calling, nonetheless recognized that courtrooms had potential for achieving the goals of his electronic pulpit. In 1990, Robertson established the American Center for Law and Justice, whose acronym, the ACLJ, was consciously adopted to mimic its legal adversaries in the ACLU. The docket of the ACLJ and other Religious Right legal groups included cases that stemmed from issues such as school prayer, abortion, and gay and lesbian rights, pitting evangelical Christians against the forces of “secular humanism,” which had replaced “godless communism” as the enemy after the collapse of the Soviet Union.

  Funded largely by right-wing foundations, the ACLJ emerged as the leading Religious Right legal group, headed by Jay Sekulow, who had been raised in a Jewish family but who had converted to evangelical Christianity during his student years at Mercer University in Atlanta, a Baptist school. A skilled and articulate lawyer, Sekulow has compiled an impressive record before the Supreme Court, arguing a dozen cases and winning more than half, often swimming upstream against entrenched judicial precedent. His first Supreme Court victory came in 1987 before he joined the ACLJ, representing a group known as Jews for Jesus, whose members had been prohibited from distributing leaflets in the Los Angeles airport.

  Sekulow had an “easy” case in Jews for Jesus, winning a unanimous decision that was based on decades of earlier rulings that “public forums” could not ban the distribution of literature by religious groups such as Jehovah’s Witnesses. But he faced a harder task, after joining the ACLJ as its general counsel, in persuading the Court that religious groups could use the facilities of public schools. Since its 1948 decision in the McCollum case, striking down a “released-time” program in which clergy members conducted religious instruction, through the school-prayer cases of Engel and Schempp in the early 1960s, the Court had invoked the Establishment of Religion clause of the First Amendment in maintaining the “wall of separation” between schools and churches. Public schools were not like airports and parks, open to the general public, and their facilities could be limited to “secular” purposes. But in two cases decided in 1990 and 1993, Sekulow persuaded Supreme Court majorities that schools could not allow “secular” groups like student chess clubs and the Girl Scouts to use their facilities while denying the same access to religious clubs and organizations.

  These cases reflected Sekulow’s skill at turning the Establishment of Religion clause—designed to protect religious minorities—into protection of the Christian majority from discrimination by overzealous school officials. Sekulow aimed his arguments at Justice Sandra O’Connor, who had emerged as the swing vote on many issues, and who had framed a new test in Establishment Clause cases, one that focused on governmental “endorsement” of religion. O’Connor had adapted this test from the Court’s 1971 ruling in Lemon v. Kurtzman, which had struck down a Pennsylvania law that provided state funds for teachers’ salaries and textbooks in private religious schools. What became known as the Lemon test required that “the principal or primary effect” of laws challenged under the Establishment Clause “must be one that neither advances nor inhibits religion.”

  Sekulow won his first “hard” victory in Board of Education of Westside Schools v. Mergens, involving a school district in the suburbs of St. Louis, Missouri. Bridget Mergens and other Westside High School students had sought permission to hold meetings of a Christian student group in school classrooms, after classes had ended and without participation by teachers. After school officials denied her request, Mergens sued in federal court, relying on the Equal Access Act, which Congress had passed in 1984 to require universities to allow student religious groups access to their facilities. Lawyers for the Westside district argued that high school students were less mature and more impressionable than university students, and might interpret the school’s approval of a Christian group as an “endorsement” of its religious message.

  Sekulow won the narrowest possible victory in the Mergens case. Writing for a plurality of four justices, Justice O’Connor noted that her endorsement test applied only to governmental speech, not to that of private individuals or groups. Justice Anthony Kennedy, joined by Justice Antonin Scalia, wrote a concurring opinion that proposed substituting what he called the “coercion” test in Establishment Clause cases. It was “inevitable,” Kennedy said, that high school students would see an endorsement by school officials of religious groups that met in school facilities, even without teacher participation. “The inquiry with respect to coercion,” he added, “must be whether
the government imposes pressure upon a student to participate in a religious activity.”

  Building on his Mergens victory, Sekulow kept pressing to open public schools to religious activities. In 1993, the justices unanimously agreed, in a case Sekulow argued, that the Center Moriches School District in New York could not bar the use of its facilities to an evangelical Christian church known as Lamb’s Chapel. He pointed out that the schools had allowed other religious groups, including the Hampton Council of Churches, to use school facilities, and framed the case as one of free speech rights, pushing the religion issue into the background. Writing for the Court in Lamb’s Chapel v. Center Moriches School District, Justice Byron White adopted the free speech argument, stating that denying access based on the group’s religious beliefs regulated speech “in ways that favor some viewpoints or ideas at the expense of others.”

  White also cited Lemon for support, almost in passing, holding that the schools had not acted with the purpose of either “advancing or inhibiting religion.” But this slight bow to Lemon did not pass muster with Scalia. Joined by Clarence Thomas in a concurring opinion, he unleashed a barrage of sarcasm: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again.” Scalia felt no need to propose an alternative to the Lemon test, simply bemoaning the “geometry of crooked lines and wavering shapes its intermittent use has produced.”

  In a third case that pitted the Establishment Clause against the Free Exercise and Free Speech Clauses of the First Amendment, Rosenberger v. University of Virginia, the issue was not equal access to school facilities, but school funding of religious publications. As far back as 1947, in the landmark Establishment Clause case of Everson v. Board of Education, the Court had held that “no tax in any amount, large or small, can be levied to support any religious activities or institutions,” as Justice Hugo Black had firmly stated. But even the Everson ruling itself had approved state funding for such “non-religious” purposes as subsidizing bus transportation for Catholic parochial school students through tax funds. In later years, the Court bent the no-tax rule even further, allowing state support to religious schools for such items as math and science textbooks, and programs for disabled students. The Rosenberger case, however, involved a mandatory “student activities fee” collected from students at the University of Virginia, with funds granted to a wide array of political and cultural groups. Ronald Rosenberger headed a Christian student group that had requested funds to publish a newspaper, called Wide Awake: A Christian Perspective, designed “to encourage students to consider what a personal relationship with Jesus Christ means.” When the group was denied funding, on the grounds that their newspaper was a “religious activity,” Rosenberger challenged the denial under the Free Exercise and Free Speech Clauses of the First Amendment.