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Supreme Court Smackdown

Robert R. Thompson

Separation of Church and State in the US is a myth. As Sandra Day O'Connor steps down from her seat on the US Supreme Court, the country prepares for another Holy War.

In M*A*S*H, when the casualty carrying helicopters would descend on the 4077th, Radar O'Reilly always heard them coming. "Wait for it," he'd say, "here they come. Choppers!" If Radar was today next to the Supreme Court building in Washington DC he might warn, "Here it comes! Watch out!"

Watch out, indeed. With Justice Sandra Day O'Connor's resignation, an unimaginably intense political maelstrom is coming upon the Supreme Court. Perhaps another justice, maybe the Chief Justice William Rehnquist, who has been ill for some time, will also resign soon, as well. We are into a nomination conflagration that will make the Robert Bork battle of 1987, or even the bitter Anita Hill-Clarence Thomas fight of 1991, seem mild by comparison. Conservatives and liberals marshal their forces, flood the media, and commence the struggle for control of the branch of government that, in Federalist paper #78, Alexander Hamilton called "the least dangerous branch."

The recent congressional conflict over the Democrats' Senate filibuster of some of President Bush's federal court nominees resulted in a compromise between Democrats and Republicans that will quickly unravel in a Supreme Court nomination battle. This compromise "did not noticeably de-escalate the ultimate battle now looming: that over a potential vacancy on the Supreme Court." (New York Times, 25 May 2005) If Mr. Hamilton returned today to assess the founders' creation, even he, who advocated a powerful government, might be a bit staggered at the fight over the "least dangerous" branch of government. If he would not be surprised at Americans' two centuries' of debate about the Executive Branch and presidential power, he would wonder why Americans of differing political persuasions now look to the Court as the last bastion of, or major roadblock to, American liberties.

Hamilton would see that the Times' staid prose does not do justice to the fervor of those in the Supreme Court debate. I recently watched with stunned fascination as the Trinity Broadcasting Network's TV "Pastor" Rod Parsley, of Ohio's World Harvest mega church, whipped his vast congregation into a mad frenzy over the judicial filibuster fight and the potential Supreme Court battle. He began his tirade slowly, with a fairly sedate power point lecture about the three branches of government. He upped his fervor as he began to excoriate the liberals who would destroy the Founders' system of checks and balances. Sweating profusely, constantly wiping his face with a handkerchief, pacing wildly back and forth, "Pastor" Parsley now shouted about war and combat, exhorting the crowd. They were on their feet, shouting, screaming, ready for war. Onward Christian Soldiers! No Christian love, charity, or cheek turning here. Only a take-no-prisoners battle against the evil that threatens America and its courts. It was, finally, quite frightening to watch the hate overflowing from this "church's" pews. Sinclair Lewis's fictional religious rabble-rouser Elmer Gantry was a wimp compared to the very real "Pastor" Parsley.

The combatants were prepared to strike when the Court's 2004-2005 term ended on Monday 27 June. The conservative lobbying group Progress for America had already fired "A Warning Shot (why is it always WAR with these people?): PFA Launches First Comprehensive Campaign in Preparation for Potential Supreme Court Vacancy . . .(and) launch a $700,000 grassroots and advertising campaign to warn the public" that liberals and Democrats will trash a Bush nominee with "a disinformation campaign." (Progress for America, 22 June 2005) Liberal groups such as People For the American Way warn that conservatives want no consensus or compromise, and are "demanding the appointment of a hard-right ideologue." If President Bush hews to the demands of Christian fundamentalists such as Pat Robertson, Jerry Falwell, (and Rod Parsley), the group argues, "he will provoke yet another divisive confirmation battle." (People for the American Way 24 June 2005)

Things seemed somewhat anticlimactic on the Court's final day, 27 June. There were big decisions, but no retirement. All remained poised for action. People for the American Way "set up a 'sate-of-the-art war room' to handle the expected battle over a new chief justice." And Progress for America "aired national television commercials urging Democrats not to block a vote on the nominee by using a filibuster." (Financial Times, 27 June 2005) Now they have the chance to go into action. There is barely time to appreciate Justice O'Connor's Court tenure as an important and moderate swing vote, and to remember that she was appointed by that raving liberal, Ronald Reagan, because people are ready to rumble over her successor.

Two of the Court's last major decisions provide red meat for the culture warriors doing battle over the vacancy. As the UK Financial Times reports, these two big decisions involved "one of the most contested fronts of the US culture war," a religious issue, the display of the Ten Commandments on government property in Kentucky and Texas. The court ruled that the Kentucky display must come down from within state courthouses. The six-foot tall Ten Commandments monument on the Texas state capitol, situated among monuments to the history of law, can stay. Context was the crucial point. "The delicate balance," the Financial Times states, "the court struck in the two cases offers further proof of the divisiveness of the questions posed." (Financial Times, 27 June 2005)

As the Financial Times report shows, Europeans are quite astounded about religious issue's impact in America. This past spring while visiting Scotland, I observed some of the 2005 UK election preliminaries, and saw that such social/religious/moral issues just do not play in their politics, as they do here. I also found this to be true on the continent, as well. When I discuss US politics with my friends in places like Hungary or the Czech Republic, they express astonishment at the conflict that swirls around these issues, as well as the amount of time the highest American court expends on dealing with them.

For Europeans such as my Czech friend, memories of the terribly destructive religious conflict of the Thirty Years War, though over three centuries past, remain potent. The American culture war is very much about religious concerns, and to many Europeans this seems a foolish, dangerous fixation. "Why," my Czech friend asked me during my visit to Prague last year, "doesn't the court rule on what Bush is doing in Iraq?" What could I say? That the inter-branch struggle over the war power has always been complex? True. But so is the question of the linkage of religion and politics in American life. Does the Supreme Court find contentious religious issues "easier" to confront than presidential abuse of the Constitution's war power? Maybe.

Mr. Hamilton would, as he watched the nomination fight, likely have similar questions about this volatile mix of politics, religion, and constitutional interpretation. I would tell him, thinking again about his Federalist #78, that in the essay he wasn't necessarily wrong, but that the political environment has changed enormously, obviously over the last 200, but particularly over the last 30 years. The rise of the Christian right following the Court's 1972 Roe v. Wade abortion decision, and especially after Ronald Reagan's election in 1980, in the campaign where Jerry Falwell and his "Moral" Majority and other Christian conservatives cut their political teeth, explains much of the recent change. I would, then, suggest to Mr. Hamilton that this is the essence of the battle over who will be future interpreters of the Constitution: it is a struggle over what exactly he, and the other Founders "meant" in the Constitution, and the relation of that "meaning" to our constant wrangling over the politics of the judicial interpretation of religious issues.

The Founders, or at least their words, are a crucial part of the struggle over new Supreme Court justices, constitutional interpretation, and religion. We will be bombarded with numerous claims about what the Founders "meant" and what they actually "intended" in the Constitution. Political talk shows already choke the air with inordinate amounts of hyperbolic analysis - Chris Matthews, Calm Down! And since when did Brian Matthews become an expert on constitutional issues? . (One wonders if "Pastor" Parsley may be able to talk with the nation's Founding Fathers and get their take on current interpretations of their original intentions. Why not? Parsley claims he's spoken with other dead people. Even some of his colleagues on the Christian right think he's nuts. Go to or

I want to offer, then, as the nomination brawl begins, my own, admittedly personal and non-exhaustive, "Guide" for following the debate. Think about these points, especially when you see and hear religious fundamentalists confidently expound on the relationship between religion, the founding, politics, and the Constitution.

My first "guide point" is a reminder that, for the most part, the Founders were not a politically homogeneous group. It is true that I, along with other academics, scholars, pundits, and analysts of all political persuasions, do refer to the Founders with a capital "F", as if they were all joined at the hip. Still, we need to be more discerning when we discuss what they "intended" about the relationship between religion and the state, or, for that matter, what they meant about any aspect of the Constitution.

On all sides of the debates over the writing and ratification of the Constitution there were very different people who held a wide array of beliefs about politics, government, and religion. And those views often evolved and changed. For example, James Madison and Alexander Hamilton, architects in 1787 of the new Constitution's stronger central government, and authors, along with John Jay, of the Federalist papers written in its support, were, by the 1790s, bitter political enemies who dramatically differed on vital points of constitutional interpretation.

A second aspect of constitutional interpretation to keep in mind involves the problematic idea of discerning the "meaning," and "intent" of this very diverse group of men. Constitutional scholar Jack Rakove notes in his book Original Meanings (Vintage, 1997), that the Constitution has grown and evolved over 215 years. It is a different document in practice than it was when newly approved. (See Chapter 1, "The Perils of Originalism") Anyone, such as originalist Justice Anton Scalia, who seeks original intent chases after phantasms. "Where we look for precise answers," Rakove writes, "the framers and ratifiers were still struggling with complex and novel questions whose perplexities did not disappear in 1788." And, commenting on the decisions of another originalist conservative Justice, Clarence Thomas, historian Bernard Bailyn makes the interesting point that, Thomas "leads the Court overall in citations of the Antifederalist papers." "How," asks Bailyn, "the Antifederalists' views explain the Constitution that was adopted over their objections has not been made clear."

A third point is that the Founders in this diverse array of constitutional convention delegates, ratification convention delegates, proponents, opponents, political pamphleteers, all fiercely debated these issues. They are all "Founders", so whom exactly do today's originalists mean when they refer to the "Founders?" The ones whose religious views fit their current political agenda? Even in the 1780s Americans debated "the efficacy of religion" in creating virtuous Americans. This debate revealed "a long-existing split in the American mind between what has been called the evangelical scheme and the legal scheme . . ." (Gordon Wood, The Creation of the American Republic 1776-1787, Norton, 1972). Calling, then, upon specific Founders can be a tricky business.

Take Thomas Jefferson for example. He actually would agree with today's conservatives about the dangerous impact of an unelected Supreme Court on our laws. He despised Chief Justice John Marshall, the architect of judicial review and of the argument that the Supreme Court is the Constitution's final arbiter. (See James Simon's book about their epic struggle, What Kind of Nation, Simon Schuster, 2002.) Yet, and this would be a fourth point to consider, though opposed to judicial review, Jefferson, like other Founders, feared religion's poisonous influence on politics. For him, the Bill of Rights' First Amendment took religion off of America's political table.

Eighteenth century Americans were only 150 years removed from Europe's religious turbulence. The attempts of various religions to dominate society were as vivid to them as they are to my Czech friend today. Jefferson asks, "Is uniformity (in religion) attainable?" His response is no, "Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity." (Jefferson, "Query XVII", Notes on the State of Virginia, 1781. Thomas Jefferson, Writings, Library of America, 1984) As he famously wrote in 1800, certain Christians had "a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States . . . (they believe he will oppose their "schemes") And they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man." (Jefferson to Benjamin Rush, Writings 23 September 1800).

The final point to consider as the nomination fight begins is this. The Constitution's Article VI states clearly: All government officials, national and state, "shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This is exactly what Christian conservatives attempt when they state that a Supreme Court nominee, or any public official, must hew to their views on abortion, or on school prayer, or on any issue. They want to establish a de facto religious test.

Such tests, de jure or de facto, were anathema to the Founders. Hamilton opposed any "such a criterion to try the fidelity of any citizen." (Speech in the New York Assembly, 24 January 1787, Richard B. Morris, Ed., The Basic Ideas of Alexander Hamilton, The Pocket Library, 1957) Edmund Randolph, in Virginia's constitutional ratifying convention, on 10 June 1788, stated that the banning of religious tests was essential to civic health. Public officials "are not bound to support one mode of worship, or to adhere to one particular sect. It (the Constitution) puts all sects on the same footing. A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States." (Max Farrand, Editor, Records of the Federal Convention, Yale University Press, 1966, Volume 3)

The fight is on. The commanders gather their forces. The combatants don their armor. The True Believers work to impose their religious test on the nominee. We must work to stop them. I have focused on the debate's complexity. I fear that that complexity will be an early casualty of the nomination battle. I would, then, finally suggest that we all remember some eloquent words from the US 1960 presidential campaign. This was the political campaign that first sparked my own interest in politics, John Kennedy's 1960 presidential quest. Ironically, he, as a Catholic, had to demonstrate that religion would not influence his political decisions. In today's political environment, prospective public officials must show that religion will influence their decision-making.

I remember Kennedy's speech to the Greater Houston Ministerial Association on 12 September 1960. I remember friends saying that no Catholic should be president. Religious bigotry is not new in America, just more virulent. Go to American At this site you can read his speech, and you can listen to it. Think about candidate Kennedy's admonitions as the Court debate intensifies. Kennedy says, "I believe in an America where the separation of church and state is absolute . . .where Catholics, Protestants, and Jews, at both the lay and the pastoral levels, will refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideals of brotherhood."

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