Lawyers in America look with keen interest each year to “First Monday”—the first Monday of October when a new term of the Supreme Court of the United States opens. In the term’s starting week the Court will disgorge a mass of orders in pending cases—mainly orders announcing the fate of cases which petitioners’ have asked the Court to hear. On First Monday, and throughout ensuing months of the term, many of these petitions will be turned down. The popular cry, “I’ll take this case to the Supreme Court!” states a deceptive truth: around 3,500 cases are taken to the Court each year. Many are filed but few are chosen. The Court hears but three percent.
Of the three percent, most are not cases on whose outcome will depend the future course of our society. Cases on bankruptcy, agency jurisdiction, shipping, legal procedure, agriculture, labor, insurance, and myriad other areas, though considered by the Court important enough to be heard, do not have that significance. A handful of cases each term, however, will illustrate the direct and immense impact which the nine citizens who are Supreme Court justices may have on things most cherished or most feared by millions of their fellow citizens. The Court is both praised and damned for being now a “conservative” Court. What does its “conservatism” mean?
One aspect of the conservative sentiment which swept the Reagan administration into office was its hostility to the previous “liberal” Supreme Courts which, in conservatives’ estimation, had been controlled by justices who deemed themselves members of a Supreme Legislature. In a God-playing role, the dominant “judicial activists” of the Warren and Burger Courts were seen as utilizing the Constitution to advance the social goals they favored and to block the realization of social goals they disfavored. This they did through the device of interpreting constitutional language in terms of “contemporary needs.” Beginning with the arrival on the Court of William H. Rehnquist in 1971 and his gradual emergence as a trenchant dissenter from judicial liberal dogma, and continuing with the confirmations of five justices nominated by Republican presidents, hopes ran high that the Court would forsake legislating and resume its role as court. Many hoped the Constitution would now be regarded, not as a springboard for the exercise of judicial opportunism, but as a body of law, most of it so clearly stated as not to admit of interpretation. Where interpretation was called for, the answer would be found in what the language was originally understood by its drafters to mean. A further aspect of Rehnquist-inspired conservatism would be its emphasis on federalism, or the fact of the existence of 50 distinct state communities, each with its own constitution, legislature, and executive branch. Not a sentimental deference to “states’ rights,” but a disavowal of reckless overturning of state determinations would be inherent in the jurisprudence of conservatism. Judicial restraint would be further manifest in a variety of other ways.
Enthusiasm for a Court of such conservative principles rested, of course, upon the underlying assumption that the good of the nation would inevitably result from their application. Advocates of religious liberty, the legal protection of human life, and parental rights in education (to name three areas deemed by millions to be of fundamental importance) felt confident, as the decade of the 1980s drew to a close, that the Conservative Court would now overturn bad decisions of the past liberal Courts in those areas. Governmental intrusions upon the freedom of religious institutions would no longer be countenanced. Baby-killing in the name of a fatuous “right of privacy” would no longer have judicial sanction. An arcane doctrine of absolute “church-state separation” would be repudiated as historically and constitutionally baseless, and religious freedom in educational choice would help break up the public school monopoly.
Failure of the Promise
It should have been obvious that there are “conservatives” and “conservatives.” A “conservative” who passionately attacked an EPA regulation as a lethal threat to steel manufacture might with equal passion support the lethal threat of abortion-sanctioning court decisions. It was too much to expect that “conservative” appointees to the Supreme Court would have come to their seats with minds any different. (The confirmation process would probably supply no reliable window showing who was who in the “conservative” mix.)
In the first of three areas of widespread concern, namely religious liberty, the Conservative Court, in a series of decisions from 1982 forward, took increasingly secularist positions, culminating in 1990 in its truly revolutionary decision in Employment Division v. Smith. There the Court carried its judicial restraint position to the extreme of holding that courts may not invalidate governmental actions that are injurious to religious freedom, provided that such actions are “generally applicable” and “religiously neutral.” Hence a statute imposing costly burdens on “all places of public assembly” could be applied to houses of worship, though the effect might be to close them down.
By its opinion in Smith (authored, surprisingly, by the reputedly orthodox Catholic, Justice Scalia), the Court has made a coming regime of legally enforced secularism a serious likelihood. Religion is left to forage for what exemptions it may find in the halls of legislatures. Smith was a decision under one of the two parts of the religion clause of the Constitution’s First Amendment—that part which is meant to protect the “free exercise” of religion. At a time when the Court (yes, the Conservative Court) had gone to extremes in liberally applying the First Amendment’s clauses on freedom of speech and press, in Smith it has marginalized, almost to extinction, protection for the “free exercise” of religion.
In the second area of concern to many citizens, that of educational freedom, the Conservative Court’s decisions have been mixed. Departing significantly from the church-state separation absolutism of Court decisions of the 1960s and ’70s, the Court in the 1980s upheld tuition tax credits benefiting both public and religious school parents, upheld use by religious student groups of public school facilities for prayer meetings, held constitutional the providing of grants to religious (along with public) organizations for services related to teenage sexuality. The weakness of these decisions, though they were salutary, lay in the fact that they were framed, not as repudiating the Court’s prior absolutist decisions but as allowable under them. In the education area, both religious and parental freedom require more. The amassing of financial resources in the now secularist governmental educational establishment at once assures the eventual control of the minds and morals of all children by the state.
Here the roadblock to real constitutional equity has been a 1963 decision of the Court known as Lemon v. Kurtzman. Lemon was the culmination of a series of decisions aimed at sterilizing relationships between government and religion of all religious substance. Voiding Pennsylvania and Rhode Island statutes which had provided a means of public aid to religious schools (hence to the parent patrons of those schools), the Court in Lemon had set up a three-part test which any legislation would have to pass to avoid being struck down as violating that part of the religion clause which bars government from creating an “establishment” of religion. Such legislation, according to the test, must have (a) an exclusively secular purpose, (b) no “primary” effect “advancing” religion (whatever might be meant by those capacious terms), and (c) it must not entail “excessive entanglements” between government and religion. The “entanglements” proposition was pure invention—not an invention of the Constitution’s framers but of Professor Paul Freund, of Harvard Law, whom the Court named as its source. Freund (and now the Court) professed to be especially concerned over “political entanglement.” This, they said, was caused in Pennsylvania and Rhode Island by the fact that major religious groups there (guess who) had campaigned for the legislation at issue. This would result (though the record in the case disclosed no such thing) in “religious division along political lines,” an “evil” at which the non-establishment prohibition was allegedly aimed.
The Lemon doctrine was rapidly extended to apply not only to invalidate any governmental programs aimed at equity for parents choosing religious schools, but also at governmental activity of any kind accommodating religion. It was chiefly Lemon which established the “naked public square” that Richard John Neuhaus has so well described. It was therefore hoped by many that, at the first opportunity, the Court would either overrule Lemon or subject it to such judicial surgery as would render it largely immobile. That opportunity came in 1991 with the case of Lee v. Weisman, the now highly publicized case involving a rabbi’s prayer at a public school graduation ceremony. On June 24, five justices, including the reputedly “conservative” Kennedy, O’Connor and Souter, joined with the all-out liberal Blackmun and Stevens to declare the prayer offering unconstitutional. While the opinion of the Court is, as the dissenting Scalia expressed it, “incoherent” in its claim that the students in question were subjected to “psychological coercion,” and “fanciful” in its claim that the occasion mandated student “participation” in prayers, the more disappointing features of the majority’s opinion were its insistent adherence to false history, its knuckle-biting emphasis on what evils innocent religious observances in public places may lead to, and above all, its perpetuation of the doctrine of Lemon v. Kurtzman, with all of its evils.
Backing Up Roe
In the third area of concern to millions of citizens, the protection of human life, the Court was provided with abundant opportunity between 1989 and 1992 to speak with resounding finality on human life’s constitutional inviolability. In 1989, in Webster v. Reproductive Health Services, the Court electrified the nation by agreeing to review an Appeals Court’s pro-abortion ruling based on Roe v. Wade. Involved was a Missouri statute which stated as a finding of fact that the life of each human being begins at conception and that unborn children, as persons, have a protectable interest in life. Other provisions of the statute required physicians to make tests, prior to performing abortions, to determine whether the unborn child is viable; prohibited the use of public employees and facilities to perform or assist abortions not necessary to save a mother’s life; and barred encouraging abortion through government-funded counseling. The decision of a fragmented Supreme Court upheld the prohibition restricting public employees and facilities and requiring viability testing. The Court, against a furious dissenting Justice Scalia, declined the opportunity to overrule Roe v. Wade. But to the pro-life movement, Webster, in spite of its deficiencies, was, after 16 years of pro-abortion decisions by the Supreme Court, a victory. It recognized a power in the states to restrict abortions, and appeared to set the stage favorably for the day when it would have the chance to review another, but broader, abortion-restrictive statute.
In the following year the Court dealt with another aspect of life-protection in the case of Nancy Beth Cruzan, a person in a persistent vegetative state, rendered incompetent by an automobile accident and being sustained by artificial nutrition and hydration. Her parents had sought a court order directing withdrawal of these, and a federal district court had held that Ms. Cruzan had a “fundamental right” to such withdrawal and had exercised it before the accident by telling a friend that if she were ever sick or injured, she would not want to continue her life unless she could live it at least halfway normally. On review of the case six justices of the Supreme Court held that states may constitutionally require that allegations of an incompetent’s wishes as to withdrawal of life-sustaining treatment be proved by “clear and convincing evidence.” It found no such evidence here. The Court expressed the need for close safeguards surrounding withdrawal of such treatment. States, it said, may properly decline to make judgments about the “quality” of a patient’s life and “simply assert an unqualified interest in the preservation of human life” to be weighed against the conditional interest of the patient in having treatment withdrawn. Justice Scalia, in a concurring opinion, said that the Constitution protects no “fundamental right” to suicide, said that this case, in essence, involved assisted suicide, and that the states have always been considered to have power to act to prevent suicide. He feared that the Court was entering upon this area of life protection as ill-advisedly as it had in the area of life protection of the unborn.
As with Webster, however, the pro-life movement felt encouraged by the Court’s decision. Here the Court, well aware of the media pressures on behalf of “the right to die,” not only flatly refused to go along but indeed spoke to the contrary.
In 1992 the Court, in the midst of feverish speculation nationally as to whether it would continue in the pro-life direction it seemed to be heading in Webster, accepted Planned Parenthood v. Casey. The result—its upholding of most parts of Pennsylvania’s abortion-restrictive statute—has caused dismay among the pro-abortion forces, dismay and rejoicing among pro-life forces. The pro-abortionists’ dismay is plainly tactical. The modest restrictions on baby-killing in the Pennsylvania statute which were upheld (parental consent, 24-hour waiting period, reporting by facilities providing abortions, and supplying the woman with factual information on abortion) have been hyperbolized as legislative horrors inevitably driving women (always stressed as “low income” women) into back-alley, “unsafe” abortions. Hence a federal Freedom of Choice Act—barring all restriction on abortion—is said to be imperative.
Certainly the millions of citizens who ardently desire a legal regime in which the unborn are safe have reason for keen disappointment over the Casey decision. The opportunity was wide open in Casey to overrule Roe v. Wade. Three “conservatives”—Justices O’Connor, Souter and Kennedy—prevented that from happening. But that did not constitute their worst action in Casey. They instead joined with what had been the pro-abortion minority on the Court (Justices Blackmun and Stevens) to reaffirm Roe v. Wade. This they did on the astounding pretext that overruling Wade would be contrary to the principle of stare decisis (i.e., respect for precedent) and “seriously weaken the Court’s capacity to exercise judicial powers and to function as the Supreme Court of a nation dedicated to the rule of law.” The frightening implication of Casey, so well shown by Russell Hittinger in the September Crisis, will instead seriously weaken the nation’s capacity to survive as a civilized society.
The Future: Last Chance?
With First Monday and the opening of the Court’s new term, what are the prospects for change? The Court will be presented chances in each of the three vital areas discussed above to change course for the good. That is, to advance religious liberty and educational freedom and to get off dead center on the protection of human life. It will, in other words, have the chance to overrule, or radically modify, its prior holdings in Smith, Lemon, and Roe v. Wade. Three cases now before the Court will afford those opportunities. On the free exercise of religion there is Church of Lukumi of Babalu Aye, Inc. v. City of Hialeah. This concerns the asserted right of the Lukumi Church to engage in the ancient African practices of santeria, involving animal sacrifice, despite a health ordinance forbidding the same. Like Smith, which involved religious use of peyote, a hallucinogenic drug, this case presents rather off-beat facts on which to base a constitutional ruling for the nation. But the Court has accepted Lukumi for review and will then have the chance, if not to overrule Smith (highly unlikely), at least to qualify it considerably.
Zobrest v. Catalina Foothills School District involves the parental right to choose religious education. Here the parents of a profoundly deaf boy, having enrolled him in a Catholic high school due to religious conviction, requested the local public school district to provide sign language interpreter services for him, for which he was eligible under the federal-state Education for the Handicapped Act. Following the school district’s refusal, the parents brought suit in federal court. Four years later, the U.S. Court of Appeals for the Ninth Circuit held that, in spite of the boy’s need and his statutory entitlement, that aid must be denied him under the holding of Lemon v. Kurtzman. The parents have now sought Supreme Court review, and the Court has a clear opportunity at last to unload the secularist and bigoted baggage of Lemon.
Finally, two other abortion cases wait in the wings. Bray v. Alexandria Women’s Health Clinic, which the court has already agreed to review, concerns a suit by an abortion facility against pro-life “rescue” demonstrators charging them with conspiracy both to violate federal law protecting the right to travel and to violate a privacy right to abortion. Ada v. Guam Society of Obstetricians and Gynecologists involves a very broad pro-life statute. As of this writing, the Court has not decided whether it will grant this case review, but the chance is again presented for overruling Roe v. Wade.
Chances are therefore at hand, in the three supremely vital areas of the national interest, to set the nation’s constitutional ship on proper course. That the chances will be availed of seems doubtful in light of the now demonstrated positions of the Court’s majority. But, for political reasons, these three chances may be last chances. Retirement, or death, may remove three of the present justices. Blackmun is 84. White, at 75, has been rumored as desiring retirement. Stevens, at 72, is said to have serious illness. If there are vacancies, however, and if liberal Democrats continue to dominate confirmation proceedings, any nominee for the Court will be required by the liberals to be foolproof in the three vital areas. If William Clinton becomes president, his positions at least on the right to life and freedom of choice in education assure that his nominees to the Court will share his malign views. And nothing encourages the idea that he will favor departure from the philosophy of the Smith decision.
If the prospect for betterment in the judicial area is politically endangered, the means to betterment will have to be found in the political. The failures which are all too likely to continue in decisions of the present in Court will only disclose more clearly the depth and breadth of the cultural—at heart, religious—divide in our nation. We seem truly down to last chances.