We are not final because we are infallible, we are infallible only because we are final.
ON FRIDAY APRIL 1, 1994, the justices gathered in their conference room, a dark, wood-paneled space with a red carpet, an ostentatious chandelier, and an enormous table. Presidential portraits adorned the walls, and an anachronistic fireplace of carved black stone occupied one wall. Customarily, the justices greet each other with a warm handshake, and then, the niceties dispensed with, sit down in order of seniority and proceed to tear each other to shreds.
Chief Justice Rehnquist went first. He opined that Kiryas Joel’s school district passed the Lemon test, so the court needn’t even bother with any discussion of overruling Lemon. In the chief’s view, the law did nothing to advance religion and drew an analogy to the Utah Territory established by the Mormons.
Justice Blackmun promptly disagreed, arguing that the Kiryas Joel law unquestionably advanced the Satmar religion and therefore undeniably violated Lemon.
In contrast to the chief and Blackmun, Justice Stevens, the only other remaining appointee from the 1970s, mused aloud about the case, calling it “unusual” and saying that the “reasons for the accommodation bother me.” He explained his discomfort by saying that it seemed to him that the accommodation had little to do with the trauma the children experienced in the public school but a lot to do with the parents’ need to prevent the children from learning about American culture. He indicated that he would vote for our position.
Stevens’s reservations were interesting but, on the whole, the opinions of the first three justices to speak were not surprising. Justice O’Connor was next, and she likely held the key. Everyone who followed the case closely was intensely curious about not only where O’Connor would go but how she would get there.
Not unexpectedly, O’Connor immediately invoked her old nemesis, Aguilar v. Felton. It would be several more years before O’Connor had the votes to overrule Aguilar, but she was clearly intent on planting the seeds with our case. She seemed to suggest, with some justification, that Kiryas Joel was a problem of the court’s making. But at the same time, she echoed the comments she made in the courtroom, criticizing the Pataki-Lentol bill and indicating that she would vote to strike down the law. “Appearances are important,” she said.
The emphasis on appearances was classic Sandra Day O’Connor, the politician. Maybe there was a colorable argument that the Satmar district did not violate the Constitution—either because the establishment of the village itself was not challenged or because of the distinction between cultural and religious issues—but in her political view, the court could not be seen to countenance blatant religious gerrymandering.
Scalia, the next in seniority, barely let Justice O’Connor finish before he called her concerns “absurd.” “Religious toleration is one of the glories of the United States!” he declared, stating an obvious point that was not in dispute. This sort of outburst was typical of Scalia. It was also typical of his disdain for other approaches and the nonchalance with which he could alienate others on the court.
Scalia went on to tell Stevens that he didn’t see any reason to separate the children from the parents, as if that were the issue at all. Knowing that without O’Connor, he had very little hope of saving the Kiryas Joel school district, he expressed disgust at his colleagues’ inability to turn their Establishment Clause decisions into a workable theory (the liberals and moderates frequently agreed as to the outcome of a religion case but could never agree on the reason for the outcome). This was telling, Scalia thought, and suggested that the outcome was arrived at by means other than constitutional interpretation. “This court,” he huffed at his colleagues in the room, “has a new theology for every new religion case. I look forward to dissent.”
Scalia’s suspicions were confirmed when Justice Kennedy, who was next in seniority, spoke. Kennedy agreed with some of what O’Connor had said, but he was convinced that “this is a religious gerrymander.” He thought the text of the statute, which identifies the Village of Kiryas Joel rather than the Satmar religion, was “an attempt to get around the Establishment Clause.”
Having lost Kennedy’s vote, Kiryas Joel was clearly looking at some kind of a loss. Now those in the minority were faced with cutting their losses and attempting to make the majority decision as narrow as possible. In appellate jurisprudence, that is often when things get most interesting. As long as a justice is in the majority on the final decision, she or he has a voice in how the court arrives at that result. And if a judge isn’t thrilled with the final result but can live with it, staying with the majority gives the jurist an opportunity to water down the decision. But once a judge is in dissent, he or she really has no voice in the case and is essentially writing for posterity. That is often the role of Scalia.
As Scalia had accurately, if bluntly, reminded his colleagues, his ideological foes on the court had never been able to come up with more than an ad hoc approach to the Establishment Clause. Each time the court took a religion case, the ostensible reason was to clarify its position. And each time, a majority of justices failed to articulate a coherent solution. Marc Stern of the American Jewish Congress suggests, and I agree, that “all the lower courts—both state and federal—consider the First Amendment to be the special province of the Supreme Court. These cases are always interesting and engaging, unlike the more tedious securities or income tax or evidence cases. The justices look forward to them, they exercise their prodigious intellectual powers on them, and it’s really an opportunity for virtuoso performances. So, not surprisingly, they all find different, idiosyncratic ways of arriving at their decisions on religion cases, and especially in Establishment Clause cases.”
After Justice Souter indicated he was on our side, the attention turned to Justice Thomas, who of course had been responsible for the case reaching the court in the first place. Thomas took particular exception with Justice Stevens’s suggestion that the need for the Kiryas Joel school sprang not from the children’s trauma but from the parents’ fear of American culture. He spoke of his own experience growing up black in a white society and of the trauma he had suffered in high school just because he was different. Thomas agreed with Scalia that it made no difference whether the parents were protecting their children or their culture.
According to Blackmun’s notes, the vote in conference was 5–3 in our favor, with only the newly confirmed Ruth Bader Ginsburg remaining. But even after the justices conferred, her opinion was not clear. Blackmun’s notes suggest Ginsberg was inclined to support our position but had not made up her mind.
Regardless, at this point in the case it was a foregone conclusion that the court would rule in favor of our arguments (although we would not know the outcome for several months). The easy part was now over, but the difficult part remained. The majority would have to find enough common ground to offer useful guidelines for the lower courts. One thing was certain: there would be a blistering dissent coming from the pen of Justice Scalia, and the majority would need to put together something robust to deflect his barbs. Since it appeared that the chief justice would be in the minority with Scalia and Thomas, it fell to Justice Blackmun, the most senior judge in the majority, to assign the opinion. Later in the afternoon on April 1, 1994, the day the court met to discuss the Kiryas Joel case, Justice Blackmun sent the following note to Rehnquist: “Dear Chief: I shall try my hand at an opinion for the Court in these cases.”
But either Blackmun found that he couldn’t write an opinion that would garner the necessary five votes or something else convinced him to pass the assignment to Justice Souter. In fact, it appears that the day before the court heard the arguments from Worona and Lewin, Blackmun had reached a decision he had been toying with for some time: he was ready to retire. By Monday, April 4, rumors had spread, and on April 6 it was official. Justice Blackmun, the author of Roe v. Wade and the last signer of Lemon v. Kurtzman still on the court, was retiring. Justice Souter let it be known that he would like to write the decision. By the middle of June, he had a draft opinion.
Souter’s draft began as two sections. The first section articulated the majority’s view of the important facts, and the second presented the court’s argument and explanation of its holding. Souter’s argument was straightforward. He wrote that the New York State Legislature had failed the Constitution in two ways. First, it had fused religious and civic power by drawing the school district to include only Satmar, when the legislature knew or should have known that it was handing over civic and governmental power to a community where the religious and civic functions were already combined. Second, the legislature had failed to provide this extraordinary benefit in a neutral way, so that it might be available to all communities regardless of religion.
Echoing O’Connor’s point in conference that “appearances matter,” Souter expressed concern about “the significant symbolic benefit to religion associated with the mere appearance of a joint exercise of legislative authority by Church and State.”
The initial opinion acknowledged that the situation in Kiryas Joel was more subtle than an explicit delegation of power to a religious leader but also held that the Supreme Court intended to look behind the express language of the law in order to consider its purpose and effects. “Authority over public schools,” Souter wrote, “belongs to the State, and cannot be delegated to a local school district defined by the State in order to grant political control to a religious group.”
He continued:
It is true that religious people (or groups of religious people) cannot be denied to exercise the rights of citizens simply because of their religious affiliations or commitments. [But] where “fusion [of religious and civic power]” is in issue, the difference lies in the distinction between a government’s purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.
The most important initial response was from Justice O’Connor on June 16. She wrote, “Dear David: I agree with much of your well-crafted opinion. My one disagreement is that I don’t see this case as involving a fusion of governmental and religious functions.” She went on to ask Souter to divide his part 2 so that she could join all of the opinion except the part that mentioned “fusion.” The note ended with a brief appeal: “I hope you can see your way clear to making the changes.”
Souter responded quickly: “Dear Sandra: Thanks for your letter of earlier today and for your readiness to make a Court as far as you are able to go. I am recirculating the opinion divided as you suggested and with what I hope will be satisfactory revisions…. I hope the changes will enable you to join to the degree your letter mentions.”
This little exchange offers an inside glimpse into the dynamics of the court. It shows the sincerity with which the justices (sometimes) work to find common ground and also the practical methods by which majority opinions are crafted.
Very different was the scathing dissent circulated by Scalia. In a fulminating opinion, he accused Souter of a “breathtaking” attempt to “steamroll the difference between civil authority held by a church and civil authority held by members of a church,” and called his arguments “facile,” saying that his case “could scarcely be weaker.” Scalia well knew Souter’s aversion to injecting personal rhetoric into court opinions and did his best to irritate his opponent by attacking Souter by name at every opportunity. Setting up a straw version of Souter’s argument, Scalia wrote, “To be sure, when there is no special treatment there is no possibility of religious favoritism; but it is not logical to suggest that when there is special treatment there is proof of religious favoritism.” Building up to a rhetorical crescendo of vitriol aimed at the straw Souter, Scalia accused the court of creating a “novel Establishment Clause principle to the effect that no secular objective may be pursued by a means that might also be used for religious favoritism if some other means is available.” Scalia took particularly sharp aim at the failure of the traditionalists on the court to articulate a workable formula for the Establishment Clause, opening with a direct attack on his colleagues:
The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with mammon, as to have become an “establishment” of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause—which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters”—has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.
Souter, for his part, was ready with an equally characteristic response. In three sober paragraphs, in language as needling as Scalia’s, Souter cast the dissenter as “the gladiator making a last stand against the lions. Justice Scalia’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining.” Souter went on to deny all of the alleged outrages Scalia had accused the majority of, and then took aim at what he saw as Scalia’s artificial and radical approach with verbiage that would figure prominently in the court’s final decision.