The old understanding rested on a kind of noble lie, namely, the presumption that the Court was essentially a neutral umpire, not a conjurer of novel constitutional doctrine. The Constitution, understood as the repository of timeless wisdom about the political order, was what truly mattered, not the will of the Justices. The Court drew its legitimacy and strength from the Constitution, not vice versa. The Justices were there to ensure the proper understanding of the Constitution as the ultimate expression of the people’s will. This essentially conservative understanding of the Court’s limited function, though not always honored, induced a certain caution among the Justices. Constitutional novelty was seen as rather more a vice than a virtue, and when it did occur an effort was made to disguise the fact. All of this changed with Brown v. Board of Education (1954) and the judicial revolution that followed in its wake. With surprising swiftness, the Court came to be seen—and the Justices came to see themselves—as the voice of a "living Constitution," by which was meant a Constitution no longer bound by original meaning or stare decisis. Henceforth, constitutional novelty became a virtue, celebrated by the organs of elite opinion and aggressively encouraged by the legal professoriate.
Under the new dispensation, it was inevitable that legal scriveners would begin coming out of the woodwork. If the Court was going to be the premier agent of redefined constitutional meaning, why should it not also be the object of heightened media attention? One can hardly turn on the television these days without encountering a platoon of professors and pundits expounding on the Court’s doings. Much of this commentary, like most television news, soon dissipates into the ether, never to be thought about again. The significance of the phenomenon is not what the legal pundits say but that they are there in such great numbers to say it. Arousing and feeding the public’s appetite for news about the Court is now the "in" thing to do. The Court, in a word, is understood to be a political player. Whether its reputation for neutrality, on which its authority ultimately rests, can withstand that understanding is another question altogether.
Intense media scrutiny is driven, no doubt, by the 24-hour news cycle, the now ubiquitous presence of cable television, the endless search for juicy sound bites, and, perhaps above all, by the celebrification of nearly everyone and everything in our time. The new focus on the Court is also driven, however, by the growing sense that the judiciary has as much to say about the character and course of our political culture as do the elected representatives of the people. One would be hard-pressed to find a subject on which the Justices are indisposed to opine, or about which they are disinclined to make new rules. The wide reach of the modern administrative state brings all sorts of matters before the judiciary that judges in previous eras never had to grapple with. Modern government’s relentlessly expanding agenda has been made more expansive still by the Justices’ self-appointed role as the ultimate guardians of democracy. The rise of judicial supremacy means that every nuance of the Court’s deliberations will be examined with unusual care. Even a President’s nominations for lower-court judgeships, which with rare exceptions used to sail through the Senate, have become matters of intense political controversy. And why should they not be?
The drama attending this year’s end of term, therefore, was no surprise. It is an election year, and the President’s opponents have sharply criticized his command of the war on terrorism, so the media were riveted on the enemy combatant detention cases. The liberals’ hope was that the Court would rebuke the President for making unfounded claims about the reach of presidential war powers. In this hope they were sorely disappointed, as the Court’s decisions in the detainee cases were a mixed bag. Taken together, they sustained presidential discretion in wartime even as they placed certain procedural limits on the manner of its exercise. Two cases concerned constitutional claims asserted by American citizens; the third addressed similar claims advanced by foreigners. At the heart of all three was the irreducible tension between national security and protection of civil liberties in time of war.
The roots of this controversy stretch back to the early days of the Republic. Heated disputes about how to strike a proper balance between presidential authority and personal liberty began before the ink was dry on the Constitution, and they will likely continue ad infinitum. In the civil libertarians’ telling of the tale, Presidents are ever prone to abuse their authority, never more so than when war or the threat of war provides a ready excuse for the expansion of their discretionary powers in unnecessary and dangerous ways. With the cooperation of a compliant Congress dominated by his own party, President John Adams gave his approval to the much-decried Alien and Sedition Acts, which, it is alleged, were used to punish Adams’ political critics. The next major chapter in the story tells the tale of Abraham Lincoln’s extraordinary (and some say unconstitutional) assertions of presidential prerogative during the Civil War. This is followed by accounts of civil liberties abuses during World War I, World War II, and the Cold War. The most prominent episode of the World War II story is the internment of Japanese-American citizens; the major elements in the story from 1945 to the fall of the Berlin Wall are the real or imagined foul deeds of the House Un-American Activities Committee, the evil omnipresence of Joe McCarthy, the almost equally nefarious Richard Nixon and J. Edgar Hoover, and the Watergate scandal.
One form or another of the civil libertarian account has pretty much become the received wisdom, thanks to countless books, movies, and television productions on the subject. But that account, dominated as it is by conflict between black hats and white hats, is hardly the whole truth. What it omits or dismisses is any adequate account of the urgent necessities of state that can prompt Presidents to expand their discretionary powers. For every example of a Nixon using the pretext of national security to advance personal or political goals, there are dozens of examples of Presidents asserting their authority in the reasonable belief that the national interest requires it. It must be remembered, moreover, that every major assertion of presidential power must sooner or later receive the formal or informal assent of Congress, the body to which the Constitution grants a considerable portion (some would say the greater part) of the war power. Nor can one ignore the constraints placed upon the exercise of presidential discretion by the threat of potentially adverse Supreme Court rulings. In short, Presidents, even those to whom the basest motives may be attributed, can seldom act alone and, even if they manage to, can seldom do so for long.
With war-making, as with most things, Congress often likes to have it both ways. Legislators are quick to lead the parade or fall in line behind a President when war or its prospect seems popular: witness the patriotic enthusiasms expressed by virtually every elected representative in the days following the successful terrorist assaults on New York City and the Pentagon; witness, too, the speed with which Congress passed the Patriot Act and delegated to the President broad discretionary authority for the use of force against terrorists and their supporters. But when a war appears to be going badly (as they all do at some point), legislators can leap off the bandwagon with alacrity, or display the kind of agility that lets them have one foot on and one foot off.
Presidents, of course, do not enjoy the luxury of having it both ways once military forces are engaged. They must see things through to victory or to some other reasonable accommodation, despite the whims of public opinion and the fair-weather friendship of Congress. Presidents will reach in time of war for as much discretionary authority as they can muster, either by delegation from Congress or by capacious interpretation of their independent constitutional powers. The exigencies of war, once engaged, almost always drive a President to assert some version of "inherent" executive power, based on the "take care" clause of the Constitution, his oath of office, and, above all, his status as commander in chief.
This necessarily pushes Presidents up against the Constitution’s grant to Congress of considerable war powers, not to mention the more general power of the purse. Countervailing constitutional assertions, each based on plausible interpretations, are invariably freighted with great passion. Sometimes the conflict takes the form of a legal case that wends its way to the Supreme Court. On such occasions many Justices would no doubt wish they had chosen some other calling. The separation of powers invites conflict between Congress and the President over war powers, and while the Court can and should have its say in appropriate cases and controversies, it must tread a careful path lest it intrude upon the jealously guarded prerogatives of the political branches or, worse, hamper the nation’s ability to defend itself. In the mother of all modern war-powers decisions, the so-called Steel Seizure case of 1952, the Court checked Harry Truman’s order authorizing the federal government to take possession of, and to operate, private steel mills threatened with closure by a union strike. Truman’s political justification rested on his need to prosecute the Korean War, and although he cited "the Constitution and the law of the United States" (especially the commander-in-chief clause) as his legal ground, he cited no specific statutory authority.
The President’s action was enjoined by a 6-3 majority of the Supreme Court, which was understandable enough, but, significantly, no written opinion could command the signatures of a majority of the Justices. Not only that, but seven of the nine Justices accepted in principle the idea of "inherent" executive power. Thus, even as they condemned the particular application of Truman’s claimed authority, a strong majority of the Court refused to tie down the exercise of presidential discretion by means of a rigid constitutional formula. The rules of the game were perhaps best summarized by Justice Robert H. Jackson’s concurring opinion: presidential authority is at its height when undertaken pursuant to, or consonant with, an Act of Congress, and at its low point when executive action appears to contravene congressional intent. In between, Jackson said, was "a zone of twilight" in which the President and Congress must contend for authority.
Jackson’s tripartite scheme is an accurate summary of the problem, but its application depends decisively on how one reads congressional authorizations. Legislation typically does not and cannot anticipate every particular set of facts that might affect the exercise of presidential discretion; nor can it properly contravene the independent sources of presidential authority radiating from Article II of the Constitution. Congress must necessarily paint with a broad brush, and that is precisely what it did when it authorized President Bush on September 14, 2001, to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." What exactly that grant of authority implied and how it amplified such inherent authority as the President may possess form the heart of the controversy animating the three enemy-combatant detainee cases decided by the Court in June, Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul, et al. v. Bush.
The Padilla case involved an American citizen accused of conspiring with al-Qaeda to carry out terrorist attacks within the United States. Based on particular factual findings about Padilla’s activities, and invoking his authority as commander in chief as well as the authority delegated by Congress (cited above), President Bush designated Padilla as an enemy combatant and committed him to military custody. He has been held at the Navy brig in Charleston, South Carolina, since June 2002. Padilla’s attorney filed a habeas corpus petition in federal court in New York City, where Padilla had originally been incarcerated in apparent anticipation of a criminal trial. Various constitutional and statutory claims were asserted, among them the contention that Padilla’s designation as an enemy combatant was unlawful and that he was being held in violation of the so-called Non-Detention Act ("No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.").
The government responded by defending President Bush’s actions on the merits, citing constitutional and statutory grounds as well as authority derived from a 1942 Supreme Court decision. The government also argued on procedural grounds, asserting that the New York federal court lacked jurisdiction to hear the case, and that a proper habeas motion would have to be filed with the Federal District Court in Charleston, directed against the commandant of the military prison.
When these opposing arguments reached the Second Circuit, a divided panel ruled against the government on both the merits of Padilla’s habeas claim and on the jurisdiction question. The Supreme Court was also narrowly divided. Although four Justices thought Padilla’s claim should be heard on the merits, the majority upheld the government’s position on the jurisdictional question. Padilla will thus have to begin all over again in Federal District Court in Charleston, a less hospitable forum for his claims, one supposes, than the Southern District of New York. It is also located within the bailiwick of the Fourth Circuit Court of Appeals, whose decision in Hamdi was also reviewed by the High Court in June.
The legal issues in Hamdi are similar to those raised by Padilla, but the facts are quite different. Although born in Louisiana, Yaser Hamdi was raised in Saudi Arabia. His father filed a habeas motion on his son’s behalf contesting the latter’s designation as an enemy combatant and claiming that Yaser had gone to Afghanistan on a humanitarian "relief" mission. The government asserts that he was captured in battle while bearing arms in support of the Taliban. Like Padilla, Hamdi challenged the factual and legal grounds of his designation as an enemy combatant. On three occasions, a federal district judge in Norfolk, Virginia, found for Hamdi, and on all three occasions he was reversed by the Fourth Circuit. In the final appeal, a unanimous three-judge panel agreed that while Hamdi was entitled to challenge his detention, the likelihood of his prevailing on the merits was small: the judiciary ought properly to defer to the executive when it comes to military judgments in the field. The procedural safeguards that citizens might normally enjoy in criminal prosecutions "do not translate neatly to the arena of armed conflict. . . ." The judiciary’s role is necessarily circumscribed because "the Constitution does not specifically contemplate any role for the courts in the conduct of war, or in foreign policy generally."
On appeal to the Supreme Court, Hamdi argued that the Fourth Circuit ruling effectively eliminated all constitutional restrictions on the exercise of presidential discretion in wartime, permitting citizens like himself to be held in prison indefinitely "without charge and without access to counsel or the courts." (In February 2004, the government granted Hamdi limited access to counsel as a matter of privilege but not of right, and imposed tight restrictions on what might be discussed.)
By a vote of 8-1, with Justice Clarence Thomas dissenting, the Court ruled that Hamdi was entitled to challenge the factual basis of his detention before a neutral decision maker. The ruling, however, produced an unusual split among the Justices, and no opinion commanded more than four signatures. The plurality opinion written by Justice Sandra Day O’Connor concluded that although Hamdi might contest the factual basis of his detention, the President is legally authorized during armed conflict to designate American citizens as enemy combatants. Further, they may be held without charge or criminal trial pendente bello. Justice Thomas would have gone further, saying that the President’s discretionary authority in such cases was for all intents and purposes beyond the purview of the courts. "In this context," he wrote, "due process requires nothing more than a good-faith executive determination." Justices David Souter and Ruth Bader Ginsburg concurred on the necessity for a factual hearing, but dissented on the adequacy of the President’s legal authority: the Non-Detention Act, in their view, prevents the detention of an American citizen absent a criminal charge. The unlikely pair of Justices Antonin Scalia and John Paul Stevens went them one better, contending that the government faced a stark constitutional choice that no amount of judicial glossing could obscure. For Scalia and Stevens the Constitution is plain, simple, and direct in its instruction: only Congress may suspend the right to habeas corpus, and because Congress had not enacted the required legislation, Hamdi must either be tried as a criminal or set free.
In short, there are five votes rather strongly sustaining presidential authority. Due process, Justice O’Connor said, requires only that a citizen-detainee be granted an opportunity to challenge his designation as an enemy combatant before "a neutral decision maker." Moreover, the neutral decision maker need not be a federal court; the "standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal." Further, once the government "puts forth credible evidence that the habeas petitioner meets the enemy combatant criteria," the burden of proof shifts to the detainee to prove that he is not an enemy combatant. In these proceedings a detainee would be entitled to assistance of counsel. The military is competent to execute these Court-imposed tasks, and it can do so without undermining national security. Consistent with many of its past decisions, the Court did not venture to undercut presidential authority in time of war. The civil libertarian perspective will live to fight another day if and when Padilla and Hamdi return for further consideration. But for the moment, there is little in either decision to give it much purchase.
The question presented by the third detainee case, Rasul, was a narrow procedural one: whether federal courts have jurisdiction to hear challenges by alien enemy combatants who were captured abroad and are now quarantined more or less incommunicado at Guantanamo Bay. The litigation was brought on behalf of two British subjects, two Australians, and twelve Kuwaitis. Although the facts pertaining to each differ in detail, the common cause alleged violation of due process rights, including the right to be informed of the charges against them and the right to meet with counsel and relatives. The government responded that because they are aliens who are being held outside the "ultimate sovereignty" of the United States, a federal court has no jurisdiction to hear the case. To this, the complainants argued that the U.S. has de facto control over Guantanamo, which is the effective equivalent of formal sovereignty.
At the heart of the litigation is the validity of the 1950 Eisentrager decision of the Supreme Court, which held that aliens who had been captured, tried by a military tribunal, and incarcerated outside the sovereign territory of the U.S. could not seek habeas relief in federal courts. (The Eisentrager prisoners were German nationals who had been captured in China, tried for aiding the Japanese war effort, and confined eventually in a U.S. military brig in Germany.) The Rasul detainees lost in district court, and the judgment was sustained by the District of Columbia Circuit Court of Appeals. (Meanwhile, in a similar case, the Ninth Circuit had ruled to the contrary, arguing that territorial control rather than formal sovereignty was the relevant test, and inasmuch as the U.S. exercises such control over Guantanamo, the detainees were entitled to be heard.) On appeal to the Supreme Court, Rasul and the other detainees prevailed on the jurisdictional question. In an opinion joined by four of his colleagues (with Justice Anthony Kennedy concurring in the result), Justice Stevens effectively gutted Eisentrager without formally overruling it. He argued that subsequent Court decisions had broadened the habeas corpus statute to convey certain rights to noncitizens, including the right to challenge their detention status in federal court. On the critical sovereignty question, Stevens argued that de facto U.S. control sufficed for jurisdictional purposes.
Justice Scalia issued a stinging dissent, also signed by the Chief Justice and Justice Thomas, describing the majority opinion as "irresponsible," "judicial adventurism of the worst sort," and "a wrenching departure from precedent" that "springs a trap" on the government’s reasonable expectation that Guantanamo Bay is beyond the reach of federal court jurisdiction. The "breathtaking" consequence of the holding, he continued, is ominous both in its implications for federal judicial power and in its harmful effects upon national security in a time of war. The result, he feared, would enable the Guantanamo detainees to file petitions for relief in any of our ninety-four federal district courts.
Whether the results of Rasul will be as baneful as the dissenting Justices fear is not clear. During oral argument, Justice O’Connor extracted from detainees’ counsel the concession that if the detainees were to be tried by military tribunals, the ground for access to federal courts would be removed. The burden of having to conduct such proceedings is bad enough, but it moots the specter of habeas proceedings being conducted in federal district court. More importantly, both sides acknowledge that inasmuch as Rasul turned on an interpretation of a federal statute, Congress could cure the problem simply by amending the statute.
Standing back from the three detainee cases in an effort to see them as a unit, one beholds a Supreme Court troubled by the claim of essentially unfettered discretion on the part of the executive. Its decisions in these cases may be read as a shot across the bow of that claim. The Court postponed the merits of Padilla to another day and gave the President a substantial victory in Hamdi. Rasul is certainly liberal adventurism of the worst sort, but its effect can be mooted either by congressional correction or by the execution of procedures akin to those spelled out in Hamdi. Hamdi’s procedures concerned only the rights of American citizens; as events unfold with respect to both citizen and alien claims, it seems improbable that the Court will grant greater due process protection to aliens than is available to citizens. Presidential authority to designate and detain enemy combatants in time of war, and to hold them outside the criminal justice system for the duration of hostilities, remains essentially intact. A heavier burden has been placed upon the military justice system, but it is one that the military is capable of handling despite the theoretical pretensions of Rasul. Doctrinally, the cases are messy and convoluted, and their resolution will not satisfy those who might prefer a theoretically consistent approach. On balance, no great harm has been done to the war effort, the executive has been modestly chastised, and the Court has preserved its largely self-appointed role as the ultimate guardian of democracy. One might wish for a lower judicial profile when it comes to national security and foreign affairs, but given the presumptions of judicial supremacy in our time, we should count ourselves fortunate that the Court did not do more damage.
Coming just behind the detainee cases in terms of media attention was, of course, the Pledge of Allegiance litigation, which asked whether public schoolchildren might continue to acknowledge the divine Author of their rights when saluting their nation’s flag (Elk Grove Unified School District v. Newdow). Earlier in the year, the Court also decided a case arising from the state of Washington, where an otherwise eligible student was denied scholarship assistance because he wished to pursue a degree in theology (Locke v. Davey; see Robert T. Miller, "Religion Uniquely Disfavored," FT June/July). With these cases we enter once again the bewildering wonderland of the Supreme Court’s religious rights jurisprudence. For sheer confusion, not to mention arbitrary and gratuitous assertions of judicial supremacy, this body of judge-made law has few competitors.
The Court punted on Newdow by avoiding altogether the merits of the First Amendment claim and deciding the case on procedural grounds. Michael Newdow, a noncustodial parent of a minor child on whose behalf he had filed his original suit, was found not to have standing to pursue the case. Justice Stevens’ opinion for the eight-Justice Court (Justice Scalia having recused himself) was joined by four other Justices. Justices Rehnquist, O’Connor, and Thomas, while concurring in the decision to dismiss the case, disagreed with the majority on the question of Newdow’s standing.
Justice Stevens’ argument on standing will be left for another day. Suffice it to say that whatever one may think of it, it only postpones the inevitable. At least three other cases dealing with the Pledge are lumbering along in three states, and new plaintiffs with unquestioned standing are being solicited in Newdow’s home state of California. The issue will be back before the Court soon and it will have to be confronted. Everyone on the Court knows that, which is no doubt why Rehnquist, O’Connor, and Thomas each wrote concurring opinions that addressed the substance of Newdow’s claim.
Chief Justice Rehnquist’s take was essentially identical to the argument advanced by the Bush administration in its briefs against Newdow: the phrase "under God" represents not an endorsement of religious belief but only the recognition of historical fact, namely, that the United States was founded "on a fundamental belief in God." The case for retaining the Pledge in its present form, in Rehnquist’s view, does not require an affirmation of any truth of a metaphysical or religious nature. It requires only the affirmation that the nation’s founders believed in God.
Justice O’Connor joined the Chief’s views in toto but added her own observations on what does or does not constitute an "endorsement" of religion. As the principal exponent of the endorsement test, Justice O’Connor has not shied from expounding its seemingly endless nuances. Her Newdow opinion was perhaps the fourth or fifth time that she has elaborated on the subject, but each new iteration seems to add more confusion than clarity. The phrase that so offended Mr. Newdow, she averred, does not violate the establishment provision of the First Amendment, but one must attend carefully to learn why. O’Connor believes that establishment jurisprudence cannot be encompassed by a single test; different categories of cases may call for different approaches. The endorsement test, however, is the rule du jour when it comes to government-sponsored speech or displays. Government "must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message ‘that religion or a particular religious belief is favored or preferred.’" The crux of the endorsement test, accordingly, is that it seeks to prevent government action that makes nonbelievers feel "that they are outsiders," or something less than "full members of the political community."
The endorsement test has been criticized as being hopelessly subjective. How is one able to determine, much less evaluate, another’s "feeling"? And, in any event, sooner or later almost every government action is bound to offend someone’s beliefs. To avoid the so-called heckler’s veto problem, Justice O’Connor has invented the "reasonable observer" sub-test of the endorsement test. The "reasonable observer" embodies "a community ideal of social judgment, as well as rational judgment." The reasonable observer must also be aware of the history of the government action in question, including its place in the nation’s "cultural landscape." A remarkable person indeed, this reasonable observer. He or she not only personifies, in some mystical way, the better angels of an entire community but also exemplifies dispassionate reason and comes armed with encyclopedic historical and sociological learning. One may be forgiven for concluding that Justice O’Connor’s trope is a convenient way of restating the inherent subjectivism of the endorsement test in a different form. One may also be forgiven for suspecting that the reasonable observer is very much a projection of O’Connor’s own beliefs about what is or is not an unconstitutional endorsement. The heckler has simply reappeared as a Supreme Court Justice who uses a contrived legal fiction rather than a bullhorn to veto government-endorsed religious expression she doesn’t like.
Be that as it may, Justice O’Connor has no objection to the religious invocation contained in the Pledge. Government-endorsed religious expression—e.g., crèche on public property, or the long-standing custom of legislative chaplains—have sometimes been sustained. Although the Court, she notes, has deployed various conflicting rationales to justify its conclusion in such cases, her own opinions, she believes, are marked by a consistent theme: although certain public practices may be expressed in religious terms, the idiom is deployed for essentially secular purposes, chief among them the commemoration of religious customs in our history. Government-sponsored religious expression, Justice O’Connor continues, may also serve "to solemnize" public occasions. Such expression, however, must stop short of invoking a "divine provenance" lest nonbelievers be made to feel like "outsiders" in the community.
By this argument, the Justice seems to be saying—one cannot be altogether sure—that the use of religion for historical commemoration or public solemnization is acceptable so long as the government doesn’t take the underlying religious sentiment seriously. The example comes to mind (though Justice O’Connor does not allude to it) of the Preamble to the Declaration of Independence. On Justice O’Connor’s reckoning, presumably, the Preamble might be posted or recited with government approval, but the government must not give the impression that it actually subscribes to its proclaimed self-evident truths.
The Justice continues by noting "a discrete category of cases" in which the government may acknowledge or refer to religion without offending the Constitution. The category she has in mind is labeled "ceremonial deism," a phrase suggested some years ago by the late Eugene V. Rostow, former Dean of Yale Law School. It has appeared from time to time in dicta penned by various Justices, by way of tentative justification for the Pledge or for allowing "In God We Trust" on currency and coinage. Is the current text of the Pledge a form of acceptable ceremonial deism? This is, Justice O’Connor says, a "close question," one that will require yet another multi-part test before it can be answered. Multi-part tests have become a hallmark of O’Connor’s jurisprudence. They convey the impression of analytic comprehensiveness, but only at a price. The more comprehensive a test purports to be, the more parts it must have. The more parts there are, the greater the opportunity to make the test yield any result one wants. Multi-part tests give the appearance of a fair-minded approach (the reasonable observer yet again?), but their application in a given circumstance can be as arbitrary as a flat-footed ipse dixit. They carry the additional disadvantage of making each case one of a kind: when a multi-part test is heavily in play, one never quite knows how a slightly different case will be decided in the future.
That is why First Amendment litigators approach each case with a certain dread. Which of the Court’s various establishment tests will capture the majority’s imagination this time? Will they invoke the mortally wounded but still-breathing tripartite approach of Lemon v. Kurzman (1971)? (Is the government’s purpose secular? Does its primary effect advance or inhibit religion? Will the government action lead to "excessive entanglement" between church and state?) In addition to, or in lieu of, the Lemon test, will the Court fasten upon "coercion" as the operative rule of decision (see Lee v. Weisman, 1992, the high school graduation prayer case)? Alternatively, or perhaps sequentially, will a majority embrace one form or another of Justice O’Connor’s "endorsement" test? In the wake of O’Connor’s Newdow opinion, are we to understand that "ceremonial deism" is now actively in play? With all these tests (and their sub-parts) wandering around the landscape of First Amendment jurisprudence, there is no way to know. Reading between the lines of the Ninth Circuit’s decision overturning the Pledge in Newdow—which uses Lemon and Weisman and a variety of endorsement tests—one senses a certain glee. The Ninth Circuit opinion has a "how about them apples?" quality that no amount of legal parsing can dispel. Newdow presented the Ninth Circuit liberals with an irresistible temptation. "If you mean what you say," their opinion in effect says to the Supreme Court Justices, "you’ve got to find the Pledge unconstitutional, and lest you try to wriggle out of the trap, here’s chapter and verse from your own leading opinions."
The Supreme Court, for its part, must have been singularly embarrassed in having to confront Newdow—not because its liberal Justices would be reluctant to follow the Ninth Circuit as a matter of principle, but because the rules of the establishment game require a certain discretion in not revealing the full implications of the Justices’ long march toward a secular society in which religion becomes a wholly private matter. To remove God from the Pledge, though it logically follows from the Court’s major opinions, would be to pull the veil back and thus to alarm the vast majority of the public. Members of the Senate and House couldn’t vote fast enough to endorse a resolution keeping the Pledge just as it is, and they did so almost unanimously. It is no surprise, then, that a majority of the Court chose to evade confronting the merits of Newdow. What they will do when a similar case returns, as it certainly will, only God knows. But Justice O’Connor’s apparent embrace of ceremonial deism may give even the most rabid secularists on the Court a way out, if they employ her newly contrived four-part test:
Part A: History and ubiquity. Justice O’Connor’s reasonable observer would acknowledge that an "unbroken practice is not something to be lightly set aside." (Except, of course, when the Court chooses to—as in the school prayer cases—but let that pass.) Moreover, Justice O’Connor adds, the Pledge, unlike certain other government practices, does not appear to be the cause of social divisiveness or ire. It would follow from this observation, which the Court has iterated at various times, that the presence or absence of an establishment violation will be determined by how often or how loudly a given practice is challenged. The heckler’s veto, it would seem, is alive and well.
Part B: Absence of worship or prayer. The Court has sustained the practice of public prayer only once, Justice O’Connor notes, citing the state legislative chaplains case (Marsh v. Chambers, 1983). The principle by which that custom is justified, however, has no legs. O’Connor argues that any government-sponsored statement which seeks to invoke penitence, spiritual communion, or divine aid is a definite no-no, as is religious speech that "strays from the legitimate secular purposes" of solemnizing or recognizing "a shared religious history." The effort to induce a sense of public solemnity, however, must not become a prayer in disguise. (How one is to tell the difference, the Justice does not precisely say.) For the moment, Justice O’Connor is content to conjure up once again her reasonable observer, who will of course be "fully cognizant of the history, ubiquity, and context of the practice in question." For this reasonable observer, it would be impossible to conclude that the Pledge constitutes a form of worship. As it happens, Mr. Newdow is thoroughly familiar with the history of how "under God" got into the Pledge, despises the ubiquity of the practice, and believes the context is obnoxiously religious. What Newdow doesn’t understand, Justice O’Connor implies, is that the offending phrase is not to be "taken literally." It is meant, rather, to be "merely descriptive; it purports only to identify the United States as a nation subject to divine authority." The ostensibly offending phrase "cannot be seen as a serious invocation of God or as an expression of individual submission to divine authority." But that, of course, is precisely how Newdow views the Pledge. He would say that if "under God" is mere words without substantive content, no one should object to his effort to have the phrase removed. To that, O’Connor has no response other than to invoke her reasonable observer as the only permissible source of opinion. But why is her reasonable observer to be preferred over Newdow’s? No answer was provided.
Part C: Absence of reference to particular religion. Here, Justice O’Connor borders on the incoherent. Rightly understood, she argues, ceremonial deism cannot be used to justify preference for "one particular religious belief system" over another. The Pledge is defensible because it merely invokes religion in general; it is not the equivalent, contra the Ninth Circuit, of invoking Jesus or Vishnu. It is true, she adds, that Buddhists, for example, don’t believe in a distinct Supreme Being, but almost every kind of solemnizing expression will run afoul of someone’s belief system, and we have to draw a line somewhere. Even though "under God" was added to the Pledge at a time when the nation had less religious diversity than it does now, it represents "a tolerable attempt" to invoke religion’s "solemnizing power" without favoring individual religious sects or belief systems.
The problem with this rationale, of course, is that the Court has said on many occasions that nonreligion has the same First Amendment rights as religion. Is Justice O’Connor here carving out a new exception, one that distinguishes between the rights of believers and nonbelievers but only on those occasions when ceremonial deism is the governing legal mantra? Besides, what’s so important about ceremonial deism? If it is just ceremonial—if, that is, we are not meant to take its content seriously—whence comes its power to effect solemnity? If the government may not in any way act on the supposition that God in fact exists, on what basis may it hope that divine invocation, even of the most general sort, will or should have any sort of solemnizing effect? Under Justice O’Connor’s version of ceremonial deism, apparently, the government must put itself in the impossible position of simultaneously invoking God and denying the truth of the proposition on which the invocation rests. Put into practice, her ceremonial deism will cease to be either ceremonial or deistic. It will in short order become a recipe for establishing a national religion of atheism.
Part D: Minimal religious content. The Pledge’s religious reference is minimal, O’Connor adds, and it neither dwells offensively on, nor makes it difficult to opt out of, the recitation. It consists of but two of thirty-one words, and the two are not essential to patriotic exercise in any event—as witness the fact that the Pledge got along without them until 1954. Besides, children and others who may object to the offending two words can easily omit them without anyone’s noticing. Once again, Justice O’Connor’s solution consists in treating the words as if they had no significance. The message of her rationale is that since the government may not take the words seriously, neither need anyone else. In the end, O’Connor’s defense of the Pledge reduces itself to the argument that the offending words have no meaning. Some defense.
Having delivered herself of this new four-part test for sustaining the Pledge on endorsement grounds, Justice O’Connor adds that the same result would be achieved by employing the coercion test. One really can’t be coerced, after all, by a gesture of essentially meaningless ceremonial deism "because such acts are simply not religious in character." That is certainly true on her reckoning, as she has spent the preceding eleven pages of her opinion emptying "under God" of any content whatsoever. Notably, in her comments about coercion, Justice O’Connor studiously avoids any reference to the Court’s decision in Lee v. Weisman, which outlawed religious benedictions at public school graduations. O’Connor joined the Court’s majority opinion in Weisman, in which Justice Kennedy contrived what can only be described as an atmospheric coercion test. As the rabbi said a prayer of thanks, the audience was not required to pray along or even to bow their heads; in fact, students were not even required to attend these graduation ceremonies. Nevertheless, Justice Kennedy argued, the atmosphere of the proceeding was by its very nature psychologically coercive, and on that ground he voided the practice. Justice O’Connor not only joined Justice Kennedy’s opinion, she joined Justice Harry Blackmun’s and Justice David Souter’s concurrences as well, making of the day a perfect establishment provision trifecta—and never mind that the three opinions went off in different directions. Coercion, endorsement, whatever, it’s all ultimately the same thing.
In adding a new four-part test to her endorsement theory and developing a full-fledged rationale for ceremonial deism, O’Connor merely piles redundancy upon redundancy. But if she still thinks Weisman’s atmospheric coercion theory makes sense, her failure to cite it when arguing her case for ceremonial deism in her Newdow opinion is telling. Every argument made in Weisman about psychological coercion of high-school students carries even more force in a case involving young schoolchildren—as the Ninth Circuit pointed out. In failing to address the Ninth Circuit’s perfectly logical application of Weisman’s premises to the Pledge controversy, O’Connor may be implying by her silence that the Ninth Circuit was right. When the Pledge litigation returns to the Court, she will either have to forsake Weisman or develop a coherent rebuttal to the Ninth Circuit’s adoption of Weisman’s rationale. Stand by for yet another multi-part test.
If O’Connor’s opinion is indicative of where the Court is likely to go when it is next presented with the Pledge controversy, Justice Thomas’ Newdow opinion indicates what the Court should but will not do to extract itself from its establishment chaos. Thomas, in effect, would acknowledge that the Court took a wrong turn in Everson in 1947, when it first incorporated the establishment provision into the Fourteenth Amendment and began to give it substantive content. In his view, the establishment provision was never meant to be incorporated at all. In its essence, it was meant to do no more than to codify the principle of federalism. While free exercise can be validly interpreted to protect a national right of freedom of conscience and religious practice, establishment should not be read as a national license to rewrite or invalidate state laws and customs dealing with religion. So long as the states respect freedom of conscience and the right to worship or not worship as one chooses, what they otherwise do by way of "endorsing" religion ought to be none of the federal government’s business. To the extent that states may interfere with religious freedom, the proper remedy lies in free exercise.
Justice Thomas’ analysis has a respectable, indeed more than respectable, scholarly and historical lineage. If adopted, it would do wonders by way of cleaning up the current First Amendment mess. As a practical matter, however, his approach has zero chance of being adopted by his colleagues. For all its philosophical appeal, and for all its accuracy as an interpretation of original meaning, Justice Thomas’ approach underestimates the extent to which the modern Court is deeply invested in maintaining the status quo. Chief Justice Rehnquist seems to have entertained something very close to Thomas’ theory nineteen years ago. His lengthy dissent in Wallace v. Jaffree (1985) tore Everson’s rationale to shreds. Despite its power, it gained no allies, though it may have had a useful life at the margins by helping to temper the excessive enthusiasms engendered by the theory of strict separationism. Everson’s rationale, despite its considerable and demonstrable defects, has exercised a kind of mesmeric charm over the shifting membership of the Court’s majority.
The majority is so confident of Everson’s hold that they no longer feel compelled to defend its argument. Its premises are so deeply rooted in dozens of modern cases that most Justices seldom stop to question them. Occasionally, a little light breaks in, by virtue of a rigorous dissent. Justice Souter, for example, was moved to offer a lengthy rebuttal to Justice Scalia’s powerful dissent in Weisman. In that exercise, he was joined by Justices Stevens and O’Connor. One suspects that their ultimate target was Justice Rehnquist’s dissent in Jaffree, and that their goal was to repair the damage to Everson’s foundation. Although Everson remains secure as a matter of Court policy, its intellectual foundations are always threatening to crumble. Its logic, if taken seriously, would mandate the eradication of every public vestige of religion in America.
Following its logic to the last syllogism, however, would expose the radical underpinnings of Everson’s suppositions and might risk rousing a considerable portion of the electorate. That is why the Court’s liberals decided to avoid the Ninth Circuit’s argument in Newdow, which, after all, merely applied the principles of the Court’s leading cases. The liberals maintain the pretense that Everson is an impeccable philosophical statement of the nation’s beliefs since time immemorial. This permits the majority in most establishment cases to determine which religious elements in American culture ought to survive and which not. By picking their targets carefully (avoiding Newdow for the time being, for example), they can succeed in inflicting death by a thousand cuts.
Those who understand Everson’s historical and philosophical errors face an exquisite dilemma. Do you hold your nose and go along with Everson’s presumptions, hoping to restrain its excesses, or do you launch a head-on assault? On various occasions, Justices Rehnquist, Scalia, and Thomas have alternated between the two strategies, the Chief more so than the other two. Having taken his head-on shot in Jaffree without notable effect, he seems thereafter to have accommodated himself to the inevitable, and in the course of doing so has used his position (when he’s in the majority) to good effect. Justice Scalia for his part has written memorable dissents in a number of cases, the implicit premise of them being that Everson was wrongly reasoned. Justice Thomas has from time to time been more forthright about his objections to the Eversonian roots of modern establishment jurisprudence, and his opinion in Newdow may betoken a yet bolder approach in future cases. For the moment, however, his position on the establishment provision leaves him pretty much in splendid isolation. His argument, alas, can be safely ignored by the majority. Everson’s doctrine is the holy writ of modern secularism, and absent a sufficient number of new appointments who share Justice Thomas’ perspective, his Newdow opinion will never control the Court or even influence it much. If you think fighting over Roe v. Wade is an inevitable and irreducible part of Senatorial confirmations, fighting over Everson would be just as bad or even worse.
As important as the detainee and religion cases are, we dare not overlook the significance of the December 2003 decision in McConnell v. Federal Election Commission, which upheld (over four withering dissents) the Bipartisan Campaign Reform Act. In so doing, the majority sustained a grotesque interference with the right of political advocacy once thought to be fully protected by the First Amendment. The point will not be elaborated here, but suffice it to say that campaigning for federal office is now a fully regulated industry, not essentially different in kind from pharmaceutical manufacturing. It is now impossible to contemplate a run for federal office without first hiring a team of lawyers. The same holds true, alas, for groups of private citizens who may wish to support or oppose candidates.
Two striking features dominate the McConnell majority opinion (jointly authored by Justices Stevens and O’Connor): (1) the cavalier way in which "strict scrutiny" (the standard normally applied to laws said to abridge First Amendment freedoms) is manipulated to reach the desired result; and (2) the extraordinary deference granted to congressional judgment on the critical issue of what may constitute corruption or the appearance thereof. The Court is traditionally deferential to congressional findings on most economic and social matters, but rarely so when legitimate First Amendment claims are at issue. To underscore the point—and to see just how disingenuous the McConnell majority was in applying "strict scrutiny"—consider the same Court’s June 2004 decision in Ashcroft v. ACLU. The issue here was Congress’ repeated efforts to protect minors from the proliferation of pornography on the Internet, all of which have run afoul of the Court’s constantly changing strictures.
Following the last go-round with the Court, Congress did precisely what a responsible legislature ought to do. It read the Court’s earlier decision and labored mightily to conform its new law to the Justices’ dictates—but to no avail. Writing for a 6-3 majority, Justice Kennedy overturned this statute as well, applying "strict scrutiny" standards and concluding that Congress had not deployed the least restrictive method to achieve its intended result. The bogus strict scrutiny in McConnell that allowed governmental interference with political speech becomes in Ashcroft a scrupulous strict scrutiny that will not allow government to protect children from pornography. Deference to congressional judgment, which was a critical feature of McConnell’s rationale, gives way in Ashcroft to judicial second-guessing about other legislative alternatives on pornography that Congress chose not to pursue. You may like or dislike on policy grounds the results in McConnell and Ashcroft, but if you take seriously the free speech analysis of either case, it’s awfully hard to justify the results in both. But who can gainsay the Court even when its opinions are dominated by doctrinal caprice? As the 2004 term drew to an end judicial supremacy, alas, remained alive and well.
Michael M. Uhlmann is visiting professor of government at Claremont Graduate University.