This year’s Supreme Court term was, all things considered, a fairly mild affair”if by mild is meant no declarations of freshly minted constitutional rights or sudden detours into unexplored legal territory of the sort we have come to expect in recent years. A narrow majority did declare for the first time that “evolving standards of decency” made execution of juveniles unconstitutional. The novel turn, however, occurred not this year but back in 2002, when the “evolving standards” contrivance was employed to forbid execution of the mentally retarded. This year’s decision followed from that as the night the day. Similarly, although many were shocked by this term’s ruling allowing local governments to seize residential property, recent opinions by the Court made this year’s conclusion nearly inevitable.

Both of these were 5-4 decisions, as were the Court’s split rulings in two Ten Commandments cases”one allowing, the other disallowing, display of the commandments on public property. In a third religion case, involving the Religious Land Use and Institutionalized Persons Act, the justices agreed unanimously (and correctly) to uphold the statute against an Establishment Clause challenge. Given the Court’s decidedly mixed track record on religious questions in recent years, we should perhaps be grateful that the justices got two out of three right this time around. At least the public square was not made noticeably more hostile toward religion than it was a year ago.

Giving thanks because the wolf didn’t eat you, however, is not the same as giving thanks because the wolf is dead. Merely to describe the Court in such terms is to recognize its power to affect political culture and the extent to which the resolution of important legal questions depends less on principle than on the idiosyncrasies of particular justices. This term’s opposing Ten Commandments decisions underscore the point. On 5-4 votes the justices overruled the first display, but upheld the second after Justice Stephen Breyer switched sides. Breyer proffered an argument based on minor factual differences between the two displays, concluding that one was more “divisive” than the other. His irreducibly subjective judgment on that point, however, gives no guidance about what will or will not pass constitutional muster next time. The constitutionality of religious displays thus hangs on the disposition of a single judge whose reasoning will not withstand close scrutiny. Not for nothing do we war these days over Supreme Court nominees. But whatever happened to the rule of law?

For many Court watchers, the big news of the term”other than the announcement of Justice Sandra Day O’Connor’s retirement”was the apparent demise of the Rehnquist Court’s federalism revolution in Raich v. Gonzales , the medical marijuana case. One has to say “apparent demise” because there wasn’t much of a revolution to begin with and, in any event, it is not clear whether Raich brought it to an end. Raich involved the question whether Congress’ power to regulate interstate commerce, as expressed in the Controlled Substances Act, could override California’s legalization of medical marijuana. The medical marijuana users rested their case on recent Supreme Court decisions that, for the first time since the New Deal, had narrowed the definition of interstate commerce.

Beginning with its 1938 term, the Court actively promoted broad national authority over economic and social affairs, at the expense of state power. The justices relied on novel and expansive interpretations of the spending and taxing power, the general welfare clause, and, above all, congressional power over interstate commerce. The high point (or low, depending on your perspective) occurred in Wickard v. Filburn (1942), where the Court decided that even wheat grown by a farmer for his own consumption was nevertheless in interstate commerce and therefore subject to federal control. After Wickard , it was hard to see how any activity, no matter how small or remote from national interest, could escape potential federal regulation. The idea that the federal government was a government of limited powers gradually disappeared, with the approbation of the federal judiciary.

There matters lay until the 1980s, when occasional majorities of the Rehnquist Court began to nibble away at the presumption that Congress could do whatever it wanted. Nibble is the operative word in the preceding sentence. A number of recent cases, for example, have sought to shore up state sovereign immunity by limiting the extent to which states can be sued without their consent, or by insisting that states may not be pressed into service as mere administrative agents of federal policy. These decisions are symbolically important, but they are hardly capable of redefining the balance of power between federal and state government.

Other cases, such as U.S. v. Lopez (1995) and U.S. v. Morrison (2000), placed modest restrictions on congressional power to define interstate commerce. In Raich , the California marijuana litigation, the Ninth Circuit Court of Appeals relied on Lopez and Morrison to argue that usage within a single state did not “substantially affect” interstate commerce and was therefore beyond the reach of Congress.

When Raich reached the Supreme Court, however, the justices overruled the Ninth Circuit. Justice John Paul Stevens, who has sharply dissented from efforts to place even mild restrictions on federal regulatory authority, must have taken almost perverse pleasure in resurrecting Wickard v. Filburn as the governing standard for testing the reach of the commerce power. The liberal and conservative wings of the current Court will continue to debate the reach of the commerce clause, but it is at bottom a debate at the margins of an overriding consensus favoring the New Deal resolution. With the possible exception of Justice Clarence Thomas, no one on the current Court wants to undo that bargain.

To almost everyone’s surprise, the most hotly disputed case of the term was Kelo v. City of New London . The issue was New London’s power to seize and demolish residences, thereafter conveying the vacant land to commercial owners in an effort to promote economic revitalization. Certain property owners resisted the city’s condemnation proceedings and sought relief on the grounds that the city’s proposed action failed the “public use” test under the Takings Clause of the Fifth Amendment to the Constitution (“nor shall private property be taken for public use without just compensation”).

Writing for a 5-4 majority, Justice Stevens concluded “public use” did not require the city to take permanent title or make the acquired property generally available to the public following condemnation. A valid economic development plan was sufficient justification for the taking. In short, “public use” for all intents and purposes means “public purpose,” and, Stevens made clear, the federal judiciary will not question a local government’s definition of what constitutes a valid public purpose.

Eminent domain jurisprudence can generate a head of steam among property lawyers and the landowners directly affected, but the predations of local government against property rights have never stirred much interest beyond these audiences. The Kelo decision may change all that. Public anger exploded once it was discovered that government planners could constitutionally displace real people living in real houses in favor of commercial redevelopers, for no other reason than that the new arrangements might be profitable for the city. The public understands and generally tolerates condemnation for public use. If the reaction to Kelo is any measure, public opinion appears to have limited tolerance when governments condemn property and give it to someone else in an effort to generate more tax revenue.

How deeply the anti- Kelo sentiment runs is impossible to say, but it has already led a number of states to tighten their condemnation laws. Given the narrow split among the justices in Kelo , a subsequent case may well lead to a reversal or narrowing of the new rule. Justice Stevens’ opinion certainly made federal constitutional challenges against local government land grabs far more difficult to sustain, but it broke no radically new ground. In a number of recent decisions, the Court had already paved the way for Kelo . Indeed, as Justice Thomas noted in his passionate dissent, the majority paid far more attention to the Court’s own rulings than it did to the purpose and history of the Constitution’s Takings Clause. He also pointed out that the typical losers in local condemnation proceedings are those who can least afford it”poor, working class, and minority populations whose neighborhoods are torn up for freeway overpasses and shopping malls.

A notable feature of the majority opinion in Kelo is its straightfaced invocation of legislative deference. It would be presumptuous of the Supreme Court, Justice Stevens argued, to second-guess the considered judgment of local authorities over the details of urban revitalization. Such deference is a laudable concept, but it makes only cameo appearances on the liberal stage. It is strangely absent from the liberal temperament when the subject under review is, for example, the regulation of abortion or the presence of religion in the public square. Legislative deference in such matters suddenly gives way to “strict scrutiny,” a self-empowering interpretive rule invented by the Court for those occasions when it wishes to question legislative purpose and its possible adverse effects.

An analogous inconsistency may be found with this year’s decision in Roper v. Simmons , which held that the Eighth Amendment’s prohibition of “cruel and unusual punishment” now requires a flat rule forbidding the execution of minors. Only fifteen years ago, the Court had reached the opposite conclusion, upholding the constitutionality of such executions in Stanford v. Kentucky . But now a different majority of the Court has simply invoked a new rule of interpretation, based on Earl Warren’s mantra about “evolving standards of decency that mark the progress of a maturing society.” The Warren standard was vigorously asserted in the 2002 Atkins v. Virginia , when the majority declared that the execution of mentally retarded persons ought to be unconstitutional.

As Justice Antonin Scalia has argued with some force and frequency, the Court’s majority can give no assurance that standards will always evolve in a humane direction. In both Atkins and Roper , the majority cited foreign legal authority and public opinion as some sort of demonstration of “decent” evolution. The cited authorities, however, demonstrate no such thing. For all we know, the world may be moving closer to a brutal version of Islamic shari’a than to some imagined standard of humane Western enlightenment. The justices’ reliance on evolving standards of decency, in short, rests on an unexamined, almost touching faith in the idea of Progress. That faith is the divining rod by which the Court’s majority sifts through all sorts of contrary evidence, selecting only those trends that confirm their own view of the world. One may be forgiven for concluding that reliance on foreign law, like the invocation of changing public opinion or evolving standards of decency, is little more than an expression of the majority’s ideological preferences. Why such preferences should be elevated to the status of constitutional rules has yet to be adequately explained.

Consider: It was an evolving standard of privacy that gave us Roe v. Wade , an evolving standard of substantive due process that justified partial birth abortion, an evolving standard of free expression that has choked political speech while allowing pornography to flood the marketplace of ideas. Evolving standards, in a word, are no standards at all; they mock the concept of a written Constitution.

The problem with evolving standards is perhaps nowhere better exemplified than in the Court’s jurisprudence concerning the Establishment Clause.

Here, competing and contradictory principles vie for dominance among opposing groups of justices. As anyone who has litigated before the Court will readily testify, predicting the outcome of a religion case is nearly impossible. The Court has been wrestling with such matters for at least six decades, but as this year’s term demonstrates, it cannot even write a reasonably coherent rule regarding government-sponsored religious displays. What we have instead of a principled constitutional understanding is a collection of modern prejudices about the nature of religion that tell us more about the predilections of the justices who hold them than they do about the meaning of the First Amendment.

The error was bred in 1947 with Everson v. Board of Education , where the Court decided for the first time to apply the Establishment Clause against the states. The logic of this dubious proposition was asserted but never argued, and to this day the only authority for it has been the Court’s own ex cathedra declaration. Everson made the Court into the nation’s final school board and zoning commission on all matters touching religion. That fact alone would have created a complicated and laborious agenda, but the Court compounded its problems by adopting two other rules in the case: It mandated strict separationism as its substantive standard of review, and it redefined establishment to forbid not only preference for one sect over another, but the preference of religion over non-religion generally.

Such was, at least, the announced mandate of Everson . A consistent application of this rule, however, would have required a wholesale assault on American political culture and led to politically hostile consequences for the Court itself. A literal application of the Everson doctrine would, for instance, void all tax exemptions for religious institutions as well as legislative and military chaplains. These and a variety of other longstanding, non-sectarian forms of assistance to religion, however, continue to thrive and have even been approved, if somewhat grudgingly, by the Court itself. At the same time, the Court has been aggressive in its efforts to extirpate many other longstanding customs such as public prayer and, more recently, religious symbols in the public square.

Rather than acknowledge that its rule was deficient, however, the Court maintained allegiance to the shibboleths of strict separation even as it carved out exceptions that mocked the Court’s doctrinal assumptions. A curious intellectual schizophrenia has thus marked modern First Amendment jurisprudence from its inception. The case law is riddled with examples in which varying majorities of the Court turn now this way, and now that way, in a confusing and increasingly feckless effort to rationalize prior precedents. Every so often, as if annoyed by its own failures, the Court will draw itself up to full height and announce a new architectonic rule, one theoretically capable of encompassing all, or at least most, church-state issues.



The most important of these efforts, the so-called Lemon test, contrived in 1973, offers a three-part rule: In order to pass constitutional muster, government aid to religion must have a secular purpose, neither advance nor inhibit religion, and not foster excessive government entanglement with religion.

There’s hardly a word in Lemon ‘s multi-part rule that doesn’t create lawyerly quibbles. Take the secular-purpose test, for just one instance: Will any secular purpose do? What is a court to do if the record shows the purpose to be partly religious and partly secular? Must a judge determine which is dominant, and if so, how? Precisely how far is a judge supposed to probe in divining legislative intent? Does the sponsor’s intent prevail, or what other legislators say about it?

Such questions could be multiplied more or less at will, and merely to ask them suggests just how subjective the Lemon test is. Not surprisingly, it has proven in application to be as much honored in the breach as in the observance. Still, the Court will not let it go. In a justifiably sardonic and all-too-accurate summary of Lemon ‘s status in a 1993 case, Justice Scalia wrote:

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, frightening the little children and school attorneys of Center Moriches Union Free School District . . . . Its most recent burial, only last Term, was, to be sure, not fully six feet under . . . . Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; . . . when we wish to uphold a practice it forbids, we ignore it entirely . . . . Sometimes, we take the middle course, calling its three prongs “no more than helpful signposts.” . . . Such a docile and useful monster is worth keeping around, at least in somnolent state; one never knows when one might need him.

Nothing has changed in the twelve years since Scalia issued his criticism. Lemon still rises from the dead to frighten the unwary, but it stays safely in the crypt when a majority of the justices so wills. Both phenomena were on display in this term’s Ten Commandments litigation. Lemon stalked the earth in Kentucky, where Justice David Souter wrote for a five-person majority in McCreary County v. American Civil Liberties Union . But the ghoul was kept at bay in Texas, where the Chief Justice Rehnquist wrote a plurality opinion in Van Orden v. Perry .

One can parse forever the factual differences between the Kentucky and Texas litigation. The law reviews will, predictably, exhaust real and imagined distinctions in the various proceedings at great length, and those distinctions will hold for precisely the length of time it takes for another Ten Commandments case to reach the Court, when they will be replaced by yet finer distinctions on which great legal consequences will be said to rest.

The factual differences here, however, have less to do with facts, as such, than with the ideological suppositions various justices bring to their evaluation. For example, in the Kentucky litigation, much was made of the fact that the displays were changed to include more secular trappings after the ACLU filed its original complaint. Liberals look at the changes and say they confirm an effort to disguise a fundamentally religious purpose. Conservatives see the same facts as confirming only a well-intended desire to comply with an admittedly confusing if not contradictory body of rules emanating from Lemon .

Seemingly important but ultimately irrelevant factual differences may also be observed in the Texas case. In his concurring opinion sustaining a commandments monument on the state capitol lawn, Justice Breyer made much of the fact that the display was first erected in 1961 (in contrast to Kentucky’s, which appeared only in the 1990s). Noting that no one had complained until recently, he concluded that the monument was not perceived as imposing sectarian preference. Justice Souter noted the same installation date and concluded, rightly, that age proved nothing: Would-be complaining parties may well have been deterred by fear of financial cost or social ostracism.

These cases, in the end, tell us next to nothing about the operative principles that ought to govern religious displays. Prior to this year’s litigation, six federal circuits had addressed Ten Commandments displays, splitting 4-2 in favor. The various opinions in Van Orden and McCreary (there were ten altogether) offer no clear guidance to lower courts addressing the question in the future. District and circuit judges will divide as they have in the past, picking and choosing among the opinions of various justices to support their conclusions. As if to underscore the point, an en banc ruling of the Eighth Circuit in August sustained a Ten Commandments monument in Plattsmouth, Nebraska, overruling a prior three-judge panel of the same circuit. The pattern of confusion that obtained before this term will persist.



After nearly six decades to ponder the depths of what is one of the central questions of American political culture, the justices have offered nothing except the very divisiveness some of them say the First Amendment was designed to prevent. But a Court that can’t bring its own house to order can hardly expect lower courts, much less the nation, to understand or follow a rule that is, to say no more, hardly a rule at all. A change in personnel may be helpful, but even that will not be enough unless the Court is willing to revisit Everson . A more or less working majority of the current Court is wedded to strict separation theory” often enough, at least, to make relatively simple cases like Ten Commandments displays highly complicated. A majority has from time to time broken with the dictates of strict separation, as, for example, in the school-voucher litigation, but it has yet to articulate a principled alternative vision of what the Establishment Clause properly requires.

A good beginning would be to recognize that the First Amendment does not, and never did, require strict neutrality as between religion and non-religion for purposes of the Establishment Clause. Requiring the state to be neutral as between sects is both constitutionally necessary and morally desirable. Requiring it to be neutral as between religion and non-religion generally produces a decidedly unneutral result”the triumph of practical atheism in the public square. Surely, a majority of the Court can understand that much. But which majority will it be that pushes the next case one way or the other”the one that sustained a display of the Ten Commandments, or the one that opposed it?

What difference will Sandra Day O’Connor’s retirement make in the work of the Court? Justice O’Connor has been claimed as an ally by certain conservative commentators, especially on federalism issues, and as a friend by liberals on abortion, affirmative action, and religion cases. On balance, the liberals have the better part of the argument.

Along with Justices Souter and Kennedy, she contrived the “undue burden” test for abortion regulation, which became just a new verbal formula permitting a pregnant woman to do as she wills, even when her child is partly delivered. O’Connor once famously remarked that Roe v. Wade was “on a collision course with itself,” but she never followed that insight to its logical conclusion.

Justice O’Connor was willing in theory to subject quota-like affirmative action programs to “strict scrutiny,” but her own judicial inspection rarely found a racial preference program that could not pass constitutional muster. On the Establishment Clause, she is best known for having invented the so-called “endorsement” test, a multi-part monstrosity that has gone through a number of iterations without acquiring much in the way of support from any of O’Connor’s colleagues on either side of the ideological divide. Although nominally designed to palliate the effects of strict separationism, the endorsement formula quickly became just another rhetorical device by which religion could be excluded from the public square. With Justice O’Connor’s departure from the Court this fall, the test will disappear without having left much of an imprint on the law.

O’Connor’s style of judging”a preference for rules of decision that made every case seem like a one-time experience”became over time almost a caricature of itself. It certainly enhanced her power on the Court as a swing vote, and there were occasions in recent years when almost all the briefs in particular cases seemed to have been written with O’Connor, and only O’Connor, in mind. Flattering to her, no doubt, but another sad reminder of how much our constitutional law has come to depend on individual judicial preferences.

Justice O’Connor’s nominated successor, John Roberts, will surely be an improvement on all these fronts. One can infer only so much about future behavior from the memoranda and briefs written by Roberts while in government service or private practice, but there seems little doubt that he is a man of vigorous conservative disposition. The expression of that disposition will have to await particular facts, but with his arrival and O’Connor’s departure, this year’s revival of the Lemon test may prove to be a one-term thing. It will take two more votes to drive a stake permanently through its heart, so that even if Chief Justice Rehnquist retired tomorrow and were replaced by Justice Scalia’s clone, Lemon would still be free to haunt the night.

The new term that begins in October will be a heady one. The Court has already agreed to revisit the conflict between federal regulatory control and the use of narcotics in religious rituals. It will also address the conflict between Oregon’s assisted suicide law and federal policy, and the constitutionality of parental notification in cases where minors seek to have abortions. There is nothing in the recently completed term to suggest that next year results will be any less confusing than this year’s. John Roberts will be an improvement, but one vote is still only one vote”which is why the battle over the next vacancy will be so bloody.

Michael M. Uhlman is visiting professor of government at Claremont Graduate University.

Articles by Michael M. Uhlmann

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