The Nine (17 page)

“So what provision of the Constitution are you relying on?” O’Connor asked.

“First Amendment, as applied to the states through the Fourteenth, freedom of speech.”

“Which part of it?”

“Free speech.”

Religion couldn’t be privileged under the Constitution, Sekulow insisted, but it couldn’t be penalized, either. “The way I understand the respondents’ argument, the atheists are in, the agnostics are in, the communists are in, the religion is not in,” Sekulow told the justices. “This is the type of viewpoint discrimination that this Court has not sanctioned.” The result, in
Lamb’s Chapel v. Center Moriches Union Free School District
, was another unanimous victory for Sekulow. In 1995, under the same theory, the court ruled that the University of Virginia could not subsidize some student publications but at the same time refuse to fund one called
Wide Awake: A Christian Perspective at the University of Virginia
. As Justice Kennedy wrote for the Court, “For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.”

By the midnineties, the issue was settled. According to the standards of Supreme Court litigation, Sekulow had emerged out of nowhere to revolutionize an important rule of law. As a result of his efforts, it was clear that if a school, airport, or other public forum was going to open up its facilities to some individuals or groups, the authorities couldn’t exclude religious speakers from the list. This was an important victory, but the evangelical agenda extended a great deal further. With Republicans now in control of both the House and the Senate (and many state houses), there was suddenly a real possibility that governments might begin subsidizing religious activities. Gingrich and others made plain that they believed churches did a better job of delivering all kinds of government services—from job training to running schools and prisons—than traditional official bureaucracies. They wanted the federal government not merely to permit these activities but, if possible, to encourage and pay for them as well. The question, then, was whether these ever-closer ties between church and state would be approved by the Supreme Court.

The answer would likely turn on a bland phrase that blossomed into one of the most controversial issues of the Rehnquist years—“the
Lemon
test.” The phrase dated to
Lemon v. Kurtzman
, a 1971 opinion by Chief Justice Burger. As the term evolved through the years, it meant that any law that involved church and state functions had to meet three criteria to be constitutional. The law had to(1) have a secular purpose, (2) neither advance nor inhibit religion, and (3) avoid excessive “entanglement” of government and religion. Over the years, the Court has proposed many such “tests,” which usually prove easier to announce than apply. That was true for
Lemon
as well. When it came to church and state, the real rule on the Rehnquist Court was simpler. As with so many other areas of the law, like abortion, it was O’Connor’s vote that made the difference. If she thought a law was constitutional, it was; if not, it wasn’t.

For Scalia, the
Lemon
test epitomized everything he loathed about modern constitutional law, and about O’Connor’s jurisprudence in particular. “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,” he wrote memorably in a concurring opinion in
Lamb’s Chapel
. In Scalia’s view,
Lemon
gave judges virtually unlimited discretion to resolve cases according to what seemed fair to them. In contrast, Scalia wanted judges to apply clear rules, dictated by the intent of the framers, and the long history of entanglement between religion and American public life gave him a rich lode of material for his originalism. Prayer in schools, religious displays like crèches on government land, public celebrations of God and his works—all had been present at the time of the framers and should be allowed today, according to Scalia. He believed that the framers meant the Establishment Clause merely to prohibit the creation of a single state religion or government action that favored one religion over another; as for other government activities that endorsed religion generally or aided all religions equally, that was entirely appropriate. In the words of the dreaded
Lemon
test, Scalia believed that the Constitution not only permitted but encouraged entanglement between church and state.

In at least one respect, Scalia had a point. As many as six justices had criticized the
Lemon
test, but it still haunted the Court, mostly because O’Connor upheld it. On church-state issues, like so many others, O’Connor had the swing vote, but not because she had trouble making up her mind about whether she was a liberal or a conservative. For O’Connor, centrism
was
a judicial philosophy in itself. When she gave tours of the Court, O’Connor would always point out the beautiful cast-iron lampposts in the courtyards. “Look at the bottom of the lampposts,” she’d say. “They’ve got turtles around the bottom, holding up the rest of it. That’s like us on the Court. We’re slow and steady, and we don’t move too fast in any direction.” O’Connor believed that steadiness was a virtue, and it was O’Connor who, like the turtles, carried the opinions of the Court on her back.

A case toward the end of Clinton’s first term illustrated the difference in Scalia’s and O’Connor’s approaches to church-state issues. As had often happened before, simple facts led the Court to a complex result. In the fall of 1993, various civic groups in Ohio began seeking space for their holiday displays on the ten-acre plaza near the statehouse in Columbus. The state authorities gave permission for the state to put up a Christmas tree, for a local synagogue to erect a menorah, and for the United Way to post a sign about the progress of a fund-raising campaign. But the state denied a request from the local branch of the Ku Klux Klan to place a Latin cross on the plaza, on the ground that such a cross on public property would represent the “establishment” of a state religion, in violation of the First Amendment. Vincent Pinette, the head of the KKK in Ohio, sued to win the right to raise the cross.

In 1995, the Court ruled 7–2 that the KKK should have the right to display the cross on Capitol Square. The case produced a bewildering six different opinions, with various justices affiliating themselves with all or parts of several of them. Scalia and O’Connor both supported the KKK’s legal position, but their rationales heightened the differences between them. (Stevens and Ginsburg were the dissenters; they believed that allowing the KKK to put up the cross did violate the Establishment Clause.)

For Scalia, as always, the issue was clear. To him, speech by and about religion received precisely the same protection under the First Amendment as any other kind of speech. “Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression,” he wrote. “Indeed, in Anglo American history, at least, government suppression of speech has so commonly been directed
precisely
at religious speech that a free speech clause without religion would be
Hamlet
without the prince.” True, the government itself might not be able to erect religious symbols, but if that government allowed Democrats and Republicans to give speeches on a public square, it had to permit Christians, Jews, and even the KKK to put up any symbols they wished as well. To Scalia, the Establishment Clause “applies only to the words and acts of
government
. It was never meant, and has never been read by this Court, to serve as an impediment to purely
private
religious speech.”

O’Connor disagreed completely. In her view, a private religious display
could
violate the Establishment Clause if a “reasonable, informed observer…would think that the State was endorsing religion or any particular creed.” In Columbus, no reasonable person could think that the state was endorsing the KKK’s cross, so the group had a right to display it. O’Connor’s solution to the problem was a flexible balancing test, like the one in
Lemon
. The problem with such an approach, of course, was that it would not always be clear what the justices themselves, much less the mythical “reasonable, informed observer,” would conclude about a given religious display. With characteristic vitriol (especially where O’Connor was concerned), Scalia said her opinion was “perverse” and “bizarre,” and “invited chaos.” And this was in a case where the two justices
agreed
on the result.

By 1995, O’Connor could slough off Scalia’s tirades. After fourteen years on the Court, she had come to feel great self-confidence in her judgments, and if her views didn’t always give perfect guidance to the lower courts, she thought it was better to be right than consistent. “We’re a common law court,” she would say, without a trace of defensiveness. “Of course, we ‘make’ law as we go along.” O’Connor was perfectly content each year to watch the parade of crèches, crosses, menorahs, and the like passing through the Court’s docket, awaiting her thumbs up or thumbs down.

The next subject on the horizon was what would become known as faith-based initiatives—government programs handed over to be run by private and religious organizations. As Sekulow and other litigators planned their litigation strategies, the question would usually come down simply to: “What will Sandra do?”

8

WRITING SEPARATELY

F
ew lawyers anticipating their appearances before the Supreme Court spent much time asking, “What will Clarence do?” As O’Connor relished her place at the center of the Court’s decisions, Thomas embraced an alternative model of judging, one where he viewed himself as a principled outsider who cared little whether his opinions commanded a majority or even a single additional vote. He was a justice neither influenced by nor with influence upon his colleagues.

Thomas rarely spoke in oral arguments. He was the only justice who suffered through a brutal confirmation fight. He was the only African American. He was more than a decade younger than most of his colleagues. He traveled in an entirely different milieu, socializing at recreational vehicle campgrounds and NASCAR tracks (where few people recognized him) and in the salons of right-wing activists (where he was revered). He was the friendliest, warmest justice, and he was full of rage. He denounced self-pity and pitied himself. There was no one on the Court remotely like him—philosophically, jurisprudentially, or personally.

As Thomas approached the completion of his first decade on the Court, he had established the most distinctive judicial perspective among the justices. He was by far the most conservative member of the Rehnquist Court, probably the most conservative justice since the Four Horsemen, FDR’s nemeses, retired during the New Deal. Thomas’s opinions, if they ultimately commanded a majority, would create not only new precedents—
Roe
overturned, virtually all religious displays allowed, virtually no executions stopped—but a transformed nation. His opinion in
Lopez
, the Commerce Clause case, offered a clue to the shape of that possible new world. Thomas joined Rehnquist’s majority opinion striking down the Gun-Free School Zones Act, but in a concurring opinion he said he thought the Court should have gone much further.

“I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause,” Thomas stated, before beginning a lengthy analysis of what the term “commerce” meant in 1789, noting, for example, his view that “manufacturing and agriculture” were outside the eighteenth-century understanding of that word. Accordingly, Thomas said, he thought any federal regulation of manufacturing or agriculture was unconstitutional. To Thomas, the change in the nation over two centuries mattered less than honoring the intent of the framers. “Even though the boundary between commerce and other matters may ignore ‘economic reality’ and thus seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce.” That no justice had expressed views like his for decades—and that his approach would invalidate much of the work of the contemporary federal government—disturbed Thomas not at all. As he said, “Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years.”