Hold on, my friends, to the Constitution and the Republic for which it stands. Miracles do not cluster, and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.
ON JULY 22, 1993, Justice Clarence Thomas circulated a memorandum to the seven other sitting Supreme Court justices (there was one vacancy), advising his colleagues that he had temporarily blocked New York from enforcing the order of its highest court and shutting down the Kiryas Joel Village School District.
“Yesterday I entered an interim stay, pending disposition of the stay applications,” Thomas wrote. “I now refer the applications to the Conference, together with my vote to grant.”
The rest of the memo laid out Thomas’s argument for his colleagues to join him in granting the stay. He addressed the four criteria for granting a stay, including the “reasonable probability that four members of this Court will vote to grant Certiorari.” Among his arguments for taking the case, the most interesting addressed Lemon.
“The Court of Appeals relied exclusively on the Lemon Test, which has been subjected to intense criticism both within the Court and without,” Thomas wrote, citing an opinion of his colleague on the right wing of the court, Antonin Scalia. “It is not inconceivable to me, that at least four members of the Court will have an interest in using this case as a vehicle for clarifying Lemon’s status.”
It is a fair bet that Thomas, viewing Kiryas Joel as a “vehicle for clarifying” the Lemon test, more likely saw it as a way to eliminate Lemon, and suspected (or knew) that at least four judges would be happy to do away with the precedent or water it down to the point that it was meaningless.
Next, he addressed the second criterion, the possibility of reversing the judgment of the lower court. Thomas acknowledged that “given the uncertainty that characterizes this Court’s Establishment Clause jurisprudence, it is extremely difficult to predict with any degree of accuracy how a case like this one would be decided.” But he added, “In my view, however, there is a significant possibility that the Court will vote to reverse the Court of Appeals’ judgment” if the court agreed to hear the case. “In sum, I believe that the issue in this case is close and difficult, and that reasonable minds can differ both as to how that issue should be analyzed and as to whether the Court of Appeals’ resolution of the issue was correct.”
Aside from another alert to other justices of his intentions, this comment offers an interesting side note on the Supreme Court’s behavior. Here we have one of the court’s most conservative judges admitting that there was little reason to think that the New York court’s opinion defied any Supreme Court precedent. In other words, Thomas was calling not for the Supreme Court to correct the New York Court of Appeals but for the court to reconsider its own failure to set a clearer standard. If a stay and, after that, cert were granted, the court might be crafting a new framework for applying the Establishment Clause. The case, in Thomas’s opinion, cried out for a different approach from the court.
Whatever the result, the decision would be most influenced by the centrist Justice Sandra Day O’Connor and the slightly right-of-center Justice Anthony Kennedy. Thomas, almost certainly, had already formed an opinion, but most likely framed it as a “close and difficult” case over which “reasonable minds can differ” as a way to project an air of collegiality to the fence-sitting colleagues he hoped to win over.
A stay required five votes and certiorari required four, so if Thomas could find five votes for the stay, he could feel pretty confident about getting four for cert. As a bonus, he would also have identified the justices he might be able to work with to form a majority willing to reconsider Lemon.
The most senior justice in 1993 was Harry Blackmun, a Nixon appointee best known for his opinion in Roe v. Wade, the landmark 1973 abortion decision. Blackmun began his Supreme Court career as a reliable conservative before drifting steadily to the left during the 1970s and ’80s. He had remained a staunch defender of Lemon and rather quickly determined, in agreement with his clerk, to vote against the stay.
Blackmun was a compulsive organizer and note taker who directed that his papers should be revealed a mere five years after his death (in comparison, recently retired Justice David Souter has directed his papers to be closed until the fiftieth anniversary of his death). Thanks to the early release of his notes (Blackmun died in 1999), we now have a pretty good idea of just what went on in the court’s consideration of Board of Education of Kiryas Joel Village School District v. Grumet. In fact, as the votes on Thomas’s memo came in, Blackmun kept track of them on the cover page of his personal copy. He jotted down plus and minus signs; next to the plus signs, he added the initials for the justices in favor of the stay, and next to the minus signs, he added those against. A plus sign appears next to the name of Justice Antonin Scalia.
Scalia, a Reagan appointee, is well known for his aggressive and sometimes caustic rhetoric. When deciding how to apply the Constitution to cases, he is an outspoken advocate of the so-called originalist approach, which searches for a sense of what the Constitution meant to “reasonable” people at the time it was ratified in the late eighteenth century and then attempts to apply it to modern problems. He has been a successful evangelist for this approach, which I and other liberal observers condemn on several fronts.
First, deciding what a reasonable person would have thought two hundred years ago is an impossible proposition. We can’t simply go with what we might imagine the founders intended, especially in an Establishment Clause case, because, as we have seen, Jefferson and Madison had very different ideas on what the First Amendment meant. Second, it would be even more difficult to assume what they might have thought about a public education system, which did not yet exist. Third, the “originalist” approach seems to ignore the fact that America had a Civil War and a subsequent series of constitutional amendments that greatly changed the meaning of the Constitution, modifying the powers of the various units of government and of the Bill of Rights, not to mention the rights of entire new classes of minority groupings of citizens.
Still, originalism has attracted a cadre of very principled supporters (as well as the less principled who viewed the theory as a way to undermine the activism and liberalism of the Warren court in the 1950s and ’60s). Scalia and Thomas embraced similar but by no means identical approaches, often rooted in originalism, and they frequently voted together.
The next two responses noted by Blackmun were votes against granting the stay. The first was from John Paul Stevens and the second from David Souter.
Stevens, a Ford appointee, came to the court as a highly respected antitrust lawyer who was catapulted to national prominence after leading an investigation into corruption on the Illinois Supreme Court. Although appointed by a Republican, Stevens had often voted to preserve the legacy of the liberal Warren court, and by the time he retired in 2010, he was solidly on the left side of the bench. Although generally a judicial conservative, Stevens held an expansive view of the Fourteenth Amendment and the Establishment Clause, and both positions would have made him inclined to deny Kiryas Joel’s petition for a stay. Also, he was not at all likely to look favorably upon granting cert to a case from a state high court that was almost unquestionably decided correctly under existing precedent.
David Souter, appointed by the first President Bush in 1990, had surprised many conservative politicians in 1992 by writing forcefully in favor of a constitutional protection for abortion rights in Planned Parenthood v. Casey (a case that many expected to overturn Roe v. Wade) and against prayer in school ceremonies in Lee v. Weisman (expected by many to roll back earlier decisions striking down school prayer). Souter detested Washington DC, and when he retired in 2009, those close to him all cited his disgust with the city and with the political environment of the court. When Souter refused to advance a radical conservative agenda, he and Scalia seemed to develop a difficult professional relationship, often trading barbs in their decisions. Now, faced with a case that might be a platform for articulating a narrower view of the Establishment Clause, Souter voted against a stay, probably because he believed that the New York Court of Appeals applied Supreme Court precedent correctly. With this vote, Souter further disappointed political conservatives, who viewed him as a traitor to their cause.
The next vote to come in was that of Justice Anthony Kennedy. Ronald Reagan had turned to the Californian after his first two choices to succeed Justice Lewis Powell failed.* Because his holdings were characterized by an unusual combination of a mild libertarianism with a strong defense of the prerogatives of the judiciary as well as an international outlook, he had often surprised both conservatives and liberals, including his colleagues on the court. Consistent with his somewhat libertarian “Don’t Tread on Me!” perspective, Kennedy tended to draw the line at coercion—any action by which the government could be seen as foisting religion on the citizenry. Kennedy voted with Scalia and Thomas for the stay.† That left two judges, and both their votes were needed to grant the stay.
Chief Justice William Rehnquist, a Nixon appointee and former devotee of Senator Barry Goldwater, had made a career out of deference to the other branches of government. Also, as a clerk for Justice Robert Jackson in the early 1950s, Rehnquist wrote a notorious memo arguing against court-ordered school desegregation just as the court was considering the landmark Brown v. Board of Education case, actually defending the “separate but equal” doctrine:
To the argument made by Thurgood Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind—whether those of business, slaveholders, or Jehovah’s Witnesses—have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men. I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed.
Rehnquist was a solid vote for activist state governments, loath to invalidate any state law on constitutional grounds and seemingly regretting the Fourteenth Amendment, which required the states to recognize the federal constitutional protections afforded their citizenry. It did not in the least surprise me that Rehnquist voted for the stay.
With Rehnquist’s vote it was clear that Thomas had the four votes necessary to grant certiorari. Justice Sandra Day O’Connor, seeing the writing on the wall, cast the fifth vote for the stay: “I am inclined to think the New York Court of Appeals reached the correct result in this case. I am not inclined to grant certiorari, however inasmuch as four other Justices appear to believe that certiorari should be granted, I will provide the fifth vote to enter a stay pending disposition by the conference.”
O’Connor’s note was illustrative. On the one hand, the note was an act of collegiality: the justice cast the swing vote, ensuring that her colleagues would have an opportunity to grant cert if they were so inclined. But she also signaled to the other conservative justices that she was disinclined to overturn the New York Court of Appeals on Kiryas Joel. Perhaps more than any justice, O’Connor championed the notion of an independent judiciary. She was well known for writing very narrow opinions that were so case-specific that it was difficult to predict what her decision would be in future cases. Along the top of the original memo from Clarence Thomas, Justice Blackmun added O’Connor as the fifth vote, but he marked her name with double underlining, perhaps as a reminder that her vote would likely be available to affirm the New York Court of Appeals.
Another vote to overturn the court of appeals probably wouldn’t come from retired justice Byron White’s replacement. Democrat Bill Clinton was in the White House, and it was unlikely he would appoint Clarence Thomas’s ideological soul mate. But the situation was complicated by the fact that Governor Mario Cuomo was widely thought to be the president’s first choice for the position.
A number of published theories have discussed what went on, but reportedly Cuomo was offered White’s seat twice; he refused it, then accepted it, and finally refused it for good. (Cuomo, with his perpetual indecision on a run for president, had earned the nickname Hamlet on the Hudson). In 2012 the former president confirmed that Cuomo declined the nomination. But political pundits have claimed that Clinton and Cuomo never had a particularly good relationship, and one theory holds that the president didn’t really want the governor on the Supreme Court. For political reasons, the story goes, Clinton gave him the honor of declining the position and, as a consolation prize, put his son Andrew in his cabinet as HUD secretary. *
A few weeks after the Supreme Court granted the stay, President Clinton nominated Ruth Bader Ginsberg to fill the vacancy. She was the first Jewish woman on the Supreme Court and an architect of a brilliant legal campaign to extend the Equal Protection Clause in the Fourteenth Amendment to women. It was a short time before the stay would lead to certiorari and at least six months before the Supreme Court would hear the case, but with each step that the Village of Kiryas Joel took toward the Supreme Court, we found ourselves sucked into national movements of such scope and force that everyone would soon forget that the case had started with Sheindle Silberstein in a reindeer costume.
Nobody could predict how it would come out, although we all knew the implications for the Establishment Clause were profound. Four of the justices—Rehnquist, Thomas, Scalia, and Kennedy—seemed receptive to permitting government involvement in religion, as long as people did not feel coerced. Four others—Blackmun, Stevens, Souter, and O’Connor—seemed to prefer a stricter standard. And nobody knew where Ginsberg stood on the Establishment Clause.
The week that the court’s decision on certiorari came down, Linda Greenhouse, who covered the Supreme Court for the New York Times for almost thirty years, wrote in the Sunday, December 5, 1993, edition that Board of Education of Kiryas Joel Village School District v. Grumet “has the makings of a potentially great Supreme Court case precisely because the issue it raises cuts across all the established categories and goes to the heart of the matter—to what extent may the secular state accommodate the needs of a religious population?” Greenhouse, whose Supreme Court coverage was so influential that some senior judges blamed her for the leftward movement of several Republican appointees, went on to suggest that the Supreme Court had indeed taken the case in order to rewrite Lemon, but that it remained questionable whether five justices could agree on a new test.
Like many observers, Greenhouse noted that the case would force the court to clarify the relationship between the Free Exercise and the Establishment Clauses of the First Amendment. In a world where more and more vital services are provided by the government (education, health care, infrastructure, etc.), conflicts between certain approaches to these two clauses are inevitable: the Satmar claimed that if the state would educate their kids with disabilities only in the ordinary public school, then it was denying their right to free exercise of religion because the Satmar would be forced to disobey religious beliefs in order to receive the benefit of publicly funded education.
The doctrine that bridges the gap between the Free Exercise Clause and the Establishment Clause is known as “accommodation.” Under this doctrine, the government may accommodate religious beliefs if those beliefs are burdened by state action. For example, if a law against narcotics prevents a Native American tribe from using peyote, a plant known for its psychoactive properties, in its spiritual rituals, the government may be able to exempt the tribe from the law for limited purposes. Wisconsin v. Yoder, the Supreme Court ruling that the Amish should not be forced to attend public school after the eighth grade, was an accommodation case: the government lifted a burden that a state had imposed on religion. Kiryas Joel, however, presented a much different take on the issue. The leaders of Kiryas Joel were not asking the court to relieve them of a state-imposed burden, such as the requirement to attend school. They wanted their own public school, funded with public money, to run on their own terms.
At the same time that commentators acknowledged the thorny issue of the relationship between the Free Exercise and the Establishment Clauses, Greenhouse and others blamed the Supreme Court for making a mess out of an already complicated area. Greenhouse called the court’s doctrines “barely coherent, making the validity of a public Christmas display, for example, turn on whether the crèche stands alone (unconstitutional) or is accompanied by candy canes and reindeer (constitutional).” Marc Stern, the lawyer for the American Jewish Congress, explained the court’s failure to come up with a coherent framework as a failure to agree on how to reach an answer rather than a failure to agree on the answer. “The problem isn’t the solution—a lot of times the solution is visceral, something is clearly not appropriate—the problem is in how you get there, and the court just hasn’t been able to agree on that.”
When an issue as fundamental to American notions of government as the First Amendment is being reassessed by the Supreme Court, many influential policy groups insist on having a say. Shortly after the court granted cert, Worona and I were contacted by attorneys from numerous organizations eager to provide amicus briefs. They included the American Civil Liberties Union, the American Jewish Congress, Americans United for Separation of Church and State, the National School Boards Association, the General Council on Finance and Administration of the United Methodist Church, the National Council of Churches of Christ in the USA, the National Coalition for Public Education and Religious Liberty, the Council on Religious Freedom, the New York Committee for Public Education and Religious Liberty, the New York State United Teachers, and many others.* These were some of the most prominent and respected education and religious liberty organizations in the nation, and they were staffed by attorneys who had been trained at the nation’s most respected law schools and who had worked for some of the nation’s most respected judges. Some of them were important academics in their own right.
The case was scheduled to be heard in March 1994. Several months earlier, I was hearing regularly from the amici who supported us, expressing concern over whether my young attorney, who had never argued a case in front of the Supreme Court, was up to the task and fearing that a relatively inexperienced counselor might inadvertently nudge the Supreme Court in the wrong direction. I also had a sense that attorneys for some of the organizations thought they, not Jay Worona, should be arguing the case. It was a delicate task to maintain both private and public support for Worona while also keeping up positive relations with the amici, all of whom I wanted to keep in our camp to demonstrate the broad academic/religious/civil rights issues at stake. But there was no way anyone other than Jay Worona was arguing this case. For one thing, he knew the case better than anyone. For another, I continued to have complete confidence in Jay. He had shown an unrivaled mastery of legal principle as well as tactics.
Personally, I was of course thrilled, not just to have my name on a case before the US Supreme Court but also to be granted an opportunity to speak to a wider public audience about an issue that I thought was the most important I would confront in my professional life. I loved the news interviews, loved having my views in the papers, and loved getting notes from school board members across the country attached to front page coverage of the case. My board seemed proud of me now; they had hired me for my vision of using media attention to bolster the authority of school boards to speak on issues of education, and I had delivered. There was positive news and editorial coverage throughout the country, in virtually every major newspaper chain and on television as well: 60 Minutes was preparing a complete segment to cover the issues in Kiryas Joel, C-SPAN wanted to do a documentary on the case, and I was scheduled to appear with Abe Wieder on Larry King Live. Of course, I knew the bubble could burst if Jay’s head were handed to him by the Supreme Court, as many of the lawyers feared and even anticipated. But Jay was my lawyer, and his role as lead counsel was not negotiable.
A number of experts predicted that the conservative wing of the Supreme Court was going to use the case to weaken, lower, and perforate the wall of separation between church and state, maybe even abandon Lemon all together. One theory making the rounds was that Thomas (and perhaps Scalia too) had zeroed in on Kiryas Joel deliberately, reasoning that justices Kennedy and O’Connor could be led further right by the genuinely heart-wrenching image of these unfortunate Hasidic children with disabilities deprived of educational opportunity.
Still, I was confident. Perhaps it was self-delusion on my part, but in my heart of hearts, I was certain we would win the publicity battle as well as the legal battle, and that the court would see, as Chief Judge Kaye of the New York Court of Appeals had, that the Satmar children could receive all the services to which they were entitled without compromising the US Constitution.
I remember when I called Jay to tell him he was going to argue at the Supreme Court. He was, obviously, elated, but also worried. Very worried.
The court of appeals case had been one of the most closely watched education cases in the nation, and there was no doubt those five years of intense on-the-job training, the long nights, working weekends, and absence of vacation days had been worth it for Jay. He was beginning to feel like the constitutional lawyer he had wanted to be. He had more than justified my faith in his abilities, but Jay was also growing concerned about my exuberance. It wasn’t that he took the case more seriously than I—that would have been hard to do—it was simply that he felt more keenly the “responsibility” of handling a Supreme Court case about a major civil right. Also, his lawyerly training to identify the weaknesses of his position and the strength of the opposition made him nervous and skeptical. For me, cert to the Supreme Court simply meant a higher pulpit and a larger audience and, of course, a chance to make an important contribution to the law. For Jay, though, the court’s decision to hear the case was ominous.
Perhaps more than any justice in history, Clarence Thomas was known to discount the social value of stability in the law in favor of doctrinal accuracy. In other words, he has little respect for stare decisis, a Latin term for the principle of sticking with old decisions. If Thomas had convinced four other justices to grant a stay and at least three others to grant cert, it must have been to overturn Lemon. Or so Worona thought—after all, everyone seemed sure that the Kiryas Joel school district could never survive the Lemon test, and everyone seemed sure that the court of appeals had applied the test correctly. Therefore, the only reason for the Supreme Court to hear the case would be to reverse and get rid of Lemon. Jay had won three cases by playing by the Supreme Court’s rules. But going to the Supreme Court meant that the rules themselves could be changed.
And Jay wasn’t so sure he wanted that on his conscience.
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* Reagan nominee Robert Bork failed to win confirmation after a legendary battle of intellectual wit with the Senate. Another nominee, Douglas Ginsberg, withdrew from consideration after acknowledging he had used marijuana.
† We viewed Kennedy’s quick vote for the stay, and later his vote for certiorari, ominously. I was concerned that he might be inclined to overrule the Lemon test with one that simply asked if the government was coercing religious participation.
* Many believe that the person Clinton really wanted on the high court was New York chief judge Judith S. Kaye, who had written the brilliant concurrence in the Kiryas Joel case. Kaye, who had earlier been courted by the Clinton administration to become the nation’s first female attorney general, preferred her role as the leader of the greatest state court in the nation. See Steven C. Krane, “Judith Smith Kaye,” Historical Society of the New York Courts official website, accessed September 18, 2015, www.nycourts.gov/history/legal-history-new-york/luminaries-court-appeals/kaye-judith.html.
* Other organizations submitted amicus briefs supporting Kiryas Joel’s position, including the National Jewish Commission on Law and Public Affairs, the United States Catholic Conference, the Institute for Religion and Polity, Agudath Israel of America, and several others.