“Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way,” Justice Elena Kagan lamented from the bench last week. “And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”
Kagan seemed to be speaking for most of her colleagues as the Court grappled with the issue of whether a Town Council can subject those attending its annual meetings to prayer—almost always explicitly Christian—by selected area clergy. It was the Court’s latest foray into the question of when government can allow, or mandate, official prayer at public events or in public institutions. The Justices seemed weary of the issue and close to despair.
This is a tale of two courts: on the one hand, a chastened, hesitant court confronting, in a case called Town of Greece v. Galloway, an issue it has been stuck with for half a century, and on the other, a bold, almost playful court, in Bond v. United States, preparing to inject its authority into a place it has previously stayed clear of.
The public-prayer question has bedeviled the Court since 1962, when the justices first invalidated a state-composed school prayer mandated by New York State. Ever since that decision, the Court has had to parse when prayer is okay and when it isn’t: If not in class, what about before high school football games? At graduation? Can a state legislature hold prayers before its sessions? Can a county board post the Ten Commandments in its courthouse? Can a state put a stone monument of the Ten Commandments on its capitol grounds? What about a Town Council (the issue in Town of Greece)? Should the government instruct clergy on “nonsectarian prayer,” whatever that might be? Would it be better if the prayers didn’t mention Jesus Christ? Would it be okay for them to mention the “Heavenly Father” or “God Almighty,” as long as they don’t mention “Jesus” or “Christ”? What about “Allah,” if there’s no mention of “Muhammad”?
Based on the weary tone of the questions in Galloway, the justices realize that they are stuck on a kind of Mobius strip, an endless loop in which each new answer raises new questions. The problem of majority religion imposing itself on dissenters is a real one, but the judges seem to wish they had stayed out of it altogether, and I think that feeling can be forgiven.
Contrast those question with the tone a day before, when the Court majority seemed to be preparing to tackle a question the Court has avoided: When may the president, with the advice and consent of two-thirds of the Senate, make a treaty in a way that the states don’t like? And when can the two Houses of Congress, along with the president, make a law to enforce a treaty?
The Court has stayed away from this question wisely, for at least three reasons. First, the Treaty Power is an enumerated power, spelled out in Article II, § 2, and it resides entirely with the executive and the Senate. Second, Article VI § 2 states that “treaties made, or which shall be made, under the authority of the United States” are “the supreme law of the land.” Third, the historical materials suggest fairly urgently that the Founders wanted the states to keep their hands off treaties and foreign policy.
Nonetheless, the Court’s conservative majority seemed to be slavering to bring this sovereign power under its control. Paul Clement, representing the petitioner, suggested that the Court should simply invalidate treaty legislation if the Federal statute exercises “a general police power.” (He later amended this slightly, conceding that Congress could outlaw sarin gas, because sarin is “warlike.”) “Police power,” of course, is a term that has no clear meaning. It appears nowhere in the Constitution, and there is nothing in the text that says Congress can’t exercise whatever-it-is when carrying out an enumerated power. The “police power” test would be about as useful as “coercion,” or “nonsectarian,” or “endorsement” are in the Establishment Clause area.
Justice Samuel Alito suggested that the Court allow Congress to legislate when a treaty involves “matters that are of legitimate concern of a foreign state”—meaning when five justices don’t disapprove of the treaty. Justice Anthony Kennedy suggested that state prerogatives should trump treaty legislation unless the treaty itself “intends nation-states to have their own constitutional structure superseded”—a requirement that would probably never be met by any treaty, because foreign nations don’t really care about what scholars Edward L. Rubin and Malcolm Feeley aptly once called America’s “national neurosis.”
The prospect of a new field for judicial power seemed to exhilarate the conservative justices. Alito played for yucks when he suggested that his distribution of chocolate at Halloween might violate the statute; Justice Scalia found amusement in the idea that a horse might eat a poisoned potato.
Solicitor General Donald Verrilli rebuked the clowns by saying, “This is serious business.” Chief Justice John Roberts seemed to agree. He is serious, too—about wresting control of this enumerated power away from those the Framers trusted with it.
Roberts seems to view the entire federal establishment, with the exception of himself and a few friends in black robes, as inhabited by knaves, liars, and power-hungry hacks. When Verrilli reminded him that treaties have a high hurdle to overcome—approval by the president and two-thirds of the Senate—Roberts scoffed at the idea that any of those figures might have principles: “It's a transfer of authority from the States to the national legislature. I don't know why you'd look to the national legislature to say, ‘Well, we'd never do that.’”
Justice Elena Kagan pointed out that that an amicus brief had been filed by “almost all of the legal counsels of the State Department, Republican and Democrat, talking about how if Petitioner's argument were accepted, it would severely damage the United States' ability to enter into and to negotiate treaties.” Roberts contemptuously responded, “I'm sure that the people who've worked in the national branch of government, particularly for the State Department, would like to have as much authority as they can get to negotiate treaties.”
The sheer arrogance and presumption of that comment took my breath away. The brief was filed by figures respected across the political and legal spectrum—figures like John C. Bellinger, the brief’s author and a former legal adviser to both the State Department and the National Security Council in the George W. Bush administration, and Abraham Sofaer, legal adviser to State under Presidents Reagan and Bush. Yet their service receives neither deference nor even courtesy from the Chief; indeed, it disqualifies them from having an opinion. If the taint of federal office renders them moral lepers, why does not similar service—in the Justice Department and the White House—do the same for John G. Roberts?
As of 2013, Roberts’ defining characteristic as Chief Justice seems to be institutional arrogance. The Court, under his leadership, is the only institution to be trusted in matters of campaign finance, regulation of commerce, enforcement of the right to vote, or now, apparently, the negotiation of treaties.
The law of church and state, I suspect, will still be a mess the day Roberts retires. There is no need for the law of foreign affairs to follow it.