Thursday, July 20, 2017

The Supreme Court and the Law of Motion

Back in the late ’90s, a Supreme Court case on the validity of a police search produced five separate opinions and left considerable doubt about who would ultimately benefit from the decision, prosecutors or criminal defendants. In our stories the next day, my opposite number at The Washington Post and I described the decision, Minnesota v. Carter, quite differently. At a reception a few days later, we encountered Justice Stephen G. Breyer, who had written one of the separate opinions. We told him about our confusion and differing interpretations.

Which of us was right, we asked. Who actually won the case?

“I don’t know,” Justice Breyer replied.

“How can you not know?” I pushed back.

The justice replied: “It depends on what the lower courts make of it.”

At first, that answer struck me as coy, even evasive, but the more I thought about it — and I’ve actually thought about it over the years — the more accurate, even profound, it has come to appear. Ours is a common-law system, in which one case follows another and legal doctrine emerges from the crucible of decided cases. Accepting only about 65 cases a year, the Supreme Court sits on the top of a very big pyramid: thousands of cases pass through the system every year, and judges are tasked with finding and applying relevant Supreme Court precedents to new cases with facts that differ, slightly or quite a lot from those in the original case.

I thought about the conversation with Justice Breyer as I read a decision the Supreme Court issued on the final day of its term. In Trinity Lutheran Church v. Comer, the court ruled that a church had a constitutional right to be considered on the same basis as secular institutions for a state grant to improve the safety of its preschool playground. The decision, with a majority opinion by Chief Justice John G. Roberts Jr., was a sharp departure from the line the Supreme Court has maintained against the direct funding of churches (the church had described the preschool as part of its religious mission, so there was no dispute in the case that the school fully shared the church’s identity).

Like most other states, Missouri, where the case arose, has a constitutional prohibition against public money going to churches. Invoking that provision, Missouri had deemed Trinity Lutheran categorically ineligible for the playground grant, although its preschool otherwise met the specified criteria. That exclusion put the church “to the choice between being a church and receiving a government benefit,” Chief Justice Roberts wrote. The court held that the exclusion amounted to discrimination against religion that was “odious to our Constitution,” a violation of the church’s First Amendment right to the free exercise of religion.

Strong words and very broad implications, but the court stopped short of taking the obvious next step of declaring unconstitutional not only Missouri’s handling of a specific grant program, but also the state constitutional provision on which the state’s action was based. Instead of playing out the implications of its decision, the majority opinion contained a footnote: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

To call this footnote odd is an understatement. The Supreme Court doesn’t usually summon the majestic, if opaque, phrases of the Constitution to swat a mouse (in this case, a program to use recycled tires as a playground surface). Of the seven justices in the majority (only Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented), only four subscribed to the footnote: Justices Anthony M. Kennedy, Samuel A. Alito Jr., and Elena Kagan, in addition to the chief justice. Justice Breyer concurred only in the judgment, so the footnote was not part of an opinion that he signed. And Justices Clarence Thomas and Neil M. Gorsuch objected that the footnote narrowed the holding of the case unrealistically.

So the footnote doesn’t even speak for a majority of the nine-member court. Chief Justice Roberts probably added it to satisfy the demand of Justice Kagan or Justice Kennedy, or both, for some limitation on the decision; it was crucial to hold them, even at the price of alienating Justices Gorsuch and Thomas, who were going to stay with the majority in all other respects. No matter what the footnote meant when the decision was issued on June 26, the question now is: What will it mean in the future? And that brings me back to Justice Breyer’s long-ago answer: It depends on what the lower courts make of it.

History offers a lesson: There is a momentum to Supreme Court decisions, and efforts to cabin the logical progression of legal doctrine will fail if the political and cultural forces that led to the doctrine in the first place remain in play. It’s Newton’s law of motion in the legal context: A doctrine in motion will stay in motion unless met by an outside force — a backlash or a change of cast. The steps can be small, but they can add up to giant steps.

by Linda Greenhouse, NY Times |  Read more:
Image: Stephen Crowley