All posts by Chris Schmidt

This Day in Supreme Court History—July 7, 1986

On this day in 1986, the U.S. Supreme Court rejected a student’s claim that school officials violated his First Amendment rights when they disciplined him for giving a speech filled with sexual innuendo before a school assembly.

The student, Matthew Fraser, decided to enliven his speech in support of a candidate for the student government of Bethel High School (located in Spanaway, Washington) by describing him as “firm in his pants,” “a man who takes his point and pounds it in,” and someone who will “take an issue and nail it to the wall.”

School officials suspended Fraser for three days and told him they were removing his name from a list of candidates for speaker at graduation. They based their punishment on a student handbook rule that prohibited conduct that substantially interferes with education, including “obscene” language. Fraser’s appeal to the school board was unsuccessful, but he had better fortunes in federal court. A federal district court held that the discipline infringed his First Amendment rights and enjoined the school to allow him, if elected, to speak at graduation. The Ninth Circuit Court of Appeals affirmed.

Not amused by Fraser’s creativity was Chief Justice Warren Burger, who was presiding over his final decision day at the Supreme Court (he would retire before the next term began). In his majority opinion in Bethel School District No. 403. v. Fraser, he denied Fraser’s First Amendment claim and overturned the appeals court’s ruling. The speech at issue was “lewd and obscene,” revolving around “an elaborate, graphic, and explicit sexual metaphor,” Burger wrote. Although the Court, in its decision in Tinker v. Des Moines Independent Community School District, had recognized that students retain First Amendment protections when they cross the schoolhouse gate, Burger distinguished Tinker. That case involved a “students’ right to engage in a nondisruptive, passive expression of a political viewpoint.” (Tinker involved a student wearing a black armband in protest of the Vietnam War.) This case, by contrast, involved the “use of vulgar and offensive terms in public discourse,” and the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” The First Amendment, Burger wrote, “does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission.”

Justices Thurgood Marshall and John Paul Stevens dissented. In his brief dissent, Marshall noted that the school had not sufficiently demonstrated that the speech was disruptive to the school’s educational mission. Stevens argued that the school policy did not obviously prohibit Fraser’s speech and the school had not given him sufficient notice that his words would carry such harsh consequences. “A strong presumption in favor of free expression should apply whenever an issue of this kind is arguable,” Stevens concluded.

This Day in Supreme Court History—June 23, 2003

On this day in 2003, the Supreme Court decided Grutter v. Bollinger, one of the Court’s most important rulings on the constitutionality of affirmative action. In a 5-4 ruling, the Court upheld the admissions policy of the University of Michigan Law School, which used race as one factor in its evaluation of applicants.

Challenging the law school’s affirmative action policy was Barbara Grutter, a white student who claimed that her constitutional rights were violated because she had been denied admission while racial minority candidates with lower GPAs and test scores had been admitted. Grutter’s supporters hoped that the Court would use her case as an opportunity to overrule Regents of the University of California v. Bakke, the 1978 Supreme Court decision that struck down racial quotas but allowed for more flexible, “holistic” use of racial preferences for purposes of increasing diversity in higher education.  

Affirmative action opponents won a partial victory in Gratz v. Bollinger, decided on the same day as Grutter. In this case a five-justice majority of Court struck down the racial preference policy used by for undergraduate admission to the University of Michigan, which used a points-based admission system that assigned a certain number of points for racial-minority status.

But Justice O’Connor, who joined the majority striking down the undergraduate policy in Gratz, joined the four dissenters in that case (Justices Stevens, Souter, Ginsburgand Breyer) to form a majority to uphold the law school’s policy in Grutter. She reiterated Bakke’s holding that states had a “compelling interest” in creating racial diversity in their institutions of higher education and then held that the law school’s racial preference policy was “narrowly tailored” because the law school “considers race only as a plus in a particular applicant’s file and gives serious consideration to all the ways besides race that an applicant might contribute to a diverse educational environment.” The law school’s effort to ensure a “critical mass” of minority students “operates neither as a quota nor a two-track admission system.”

In his dissent, Chief Justice Rehnquist denounced the law school’s program as nothing more than “a naked effort to achieve racial balancing.” He argued that the law school policy, like the undergraduate admissions policy, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Scalia wrote his own acerbic dissented in which he lamented that “today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation” over affirmative action.

Justice Thomas wrote a long, powerful, and personal dissent. He began by quoting the great African American abolitionist Frederick Douglass, who gave a speech in 1865 denouncing the harms caused by white “interference” with blacks. “Do nothing with us!” Douglas demanded. “Like Douglass,” Thomas wrote “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Although modified somewhat in the recent Fisher v. University of Texas decisions, Grutter remains basically intact today. Universities are permitted to use racial preferences in selecting their incoming classes, so long as they are doing so in order to advance a goal of diversity and so long as they use a flexible process of evaluation in which race is only one factor among many.

This Day in Supreme Court History—June 15, 1989

On this day in 1989, the Supreme Court handed down Michael H. v. Gerald D., a landmark case on parental rights that highlighted fissures among the justices on the nature of constitutional rights not specifically enumerated in the text of the Constitution.

The Court upheld a California law that presumed a child born to a married woman living with her husband to be a child of that marriage. The law was challenged by the child’s biological father.

The facts of the case could have been pulled from the script of a soap opera. The married couple in the case was international model, Carole Dearing, and French oil company executive, Gerald Dearing. Carole had an affair with a neighbor, Michael Hirschensohn, which resulted in the arrival of baby Victoria. Gerald was listed as Victoria’s father on her birth certificate, and he always presented her as his daughter. But Carole told Michael that he might be Victoria’s father, which a subsequent blood test confirmed. For some period of time Michael lived with Carole and Victoria. He presented Victoria as his daughter, and she called him “Daddy.”

When this living arrangement broke up, and Carole and Victoria returned to Gerald, Michael sought to be declared Victoria’s father so he could obtain visitation rights. California courts denied Michael’s efforts, and he appealed his case to the U.S. Supreme Court, claiming that California’s denial of his ability to establish a relationship with his biological daughter violated his Fourteenth Amendment due process rights.

Justice Scalia, wrote the opinion of the Court. (He was joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy; Justice Stevens wrote a separate concurring opinion.), rejected Michael’s challenge to California’s refusal to allow him to establish paternity. He argued that although California’s policy did prevent a biological father from establishing a relationship with his child, it did so in order to protect the interests of the marital relationship: “to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa.” California did not violated any due process rights by privileging a married couple’s relationship over the rights of “an adulterous natural father.” He looked to history and found no tradition of recognition of the rights of fathers who had affairs with married women. Precedent rests “upon the historic respect—indeed sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.”

In dissent, Justice Brennan (joined by Justices Marshall and Blackmun) argued that the original reasons for the presumption of paternity are outdated in a world “in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did.”  Because Michael lived with and supported Victoria, the only difference between the child’s relationship with Michael and her relationship with Gerald is “the fact of marriage”—and, as the Court had previously held, marriage should not be conclusive in these situations cases. The state’s interest in preserving family units was “minute in comparison with a father’s interest in his relationship with his child.”

This Day in Supreme Court History—June 13, 1966

On this day in 1966, the Supreme Court announced its decision in Miranda v. Arizona. In a decade filled with headline-making Supreme Court rulings, Miranda stood out. It became a favorite target of a conservative law-and-order campaign that helped get Richard Nixon elected president and transformed the politics of criminal justice. But as controversial as the ruling was at the time, Miranda soon became an unlikely popular icon, its requirement that police inform suspects of their rights (“You have the right to remain silent …”) quoted in television shows and movies until it has become part of our cultural firmament.

The case reviewed the criminal convictions of four men, each of whom had confessed to a crime. The lead defendant, Ernesto Miranda signed a written statement confessing to two crimes, a kidnapping and a rape, after two hours of police interrogation. The police had not advised Miranda of his right to have an attorney present during questioning. He was convicted and sentenced to twenty to thirty years in prison.

In a 5-4 ruling, the Court reversed Miranda’s conviction. In the process, the Court extended the Fifth Amendment’s protection against self-incrimination to anyone in police custody. (Prior to this point, this right had only applied at trial.)

Writing for the Court, Chief Justice Earl Warren dedicated much of his lengthy opinion to cataloging the abusive, and often quite brutal, interrogation tactics that had long been common in police departments and that remained prevalent in 1960s America. Such tactics, Warren wrote, were “at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.”

As a remedy for this constitutional violation, Warren held that for a suspect’s statements to be used at trial, the police first had to inform the suspect of his rights and the consequences of waiving these rights. These rights included: that the suspect had the right to remain silent; that any statement the suspect made could be used as evidence against him; that the suspect has the right to have an attorney present; and that an attorney will be appointed for him if he cannot afford one. Any waiver any of these rights must be “made voluntarily, knowingly and intelligently.”

Warren defended his opinion against the dissenters’ accusations that it would undermine effective law enforcement by noting that the FBI had already implemented a practice of informing suspects and arrestees of their rights before interrogations.

Justice John Marshall Harlan read his strongly worded dissent from the bench. “His face flushed and his voice occasionally faltering with emotion,” reported the Washington Post, Harlan “denounced the decision as ‘dangerous experimentation’ at a time of a ‘high crime rate that is a matter of growing concern.’” Perhaps the most widely reported lines of dissent were those of Justice Byron White, who wrote: “In some unknown number of cases the Court’s rule will turn a killer, a rapist, or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”

Although some praised the decision as an important step in protecting the rights of criminal defendants, much commentary on Miranda predictably echoed the dissenters’ critiques. The ruling “added enormously to the difficulties the Court already has imposed on police,” wrote the conservative New York Times columnist Arthur Krock. He noted that law-enforcement officials already identified the Court’s rulings a primary cause of the increase in crime with which they were dealing. “We might as well close up shop,” declared one police chief said after learning of the ruling.

Despite widespread attacks on the decision, including an effort by Congress to effectively overrule it, the ruling stood and it still stands today, its warnings probably the most recognized—and certainly the most quoted—words ever written in a Supreme Court opinion.

This Day in Supreme Court History—April 26, 1978

On this day in 1978, the Supreme Court decided First National Bank of Boston v. Bellotti, a seminal case involving corporate speech rights.

In a 5-4 ruling, the Court struck down a Massachusetts law that prohibited corporations from spending money to influence the outcome of referenda, unless the referenda issue “materially affected” them.

Justice Lewis Powell Jr. wrote the majority opinion. The Court had repeatedly upheld the speech rights of media outlets and the right of corporations to advertise, Powell noted. These First Amendment decisions were based not on corporate business interests, but on a concern for “the preservation of free and uninhibited dissemination of information and ideas.” By denying corporations the ability to spend money to advance their views on issues that cannot be “proved to affect adversely their property or business interest,” the Massachusetts law deprives the public of their views on issues of general public interest. Massachusetts failed to identify an interest that was important enough to justify the restriction of public access to ideas and information, Powell wrote. “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”

In a footnote to his opinion, Powell noted that the Court’s ruling “implies no comparable right in the quite different context of participation in a political campaign for election to public office.” The Court would later recognize the right for corporations to spend their money in political campaigns in the controversial 2010 Citizens United case.

Chief Justice Burger and Justices Blackmun, Stewart, and Stevens joined Justice Powell’s opinion.

Justice White wrote a dissent in which Justices Brennan and Marshall joined. The First Amendment does not forbid the state from interfering with “managerial decisions of this kind,” wrote Justice White. “Government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena.” Because of their wealth, White explained, corporations can “acquire an unfair advantage in the political process.” He noted that the Court’s holding invalidated a longstanding statute and brought into question similar statutes in 30 other states as well as federal law.
Justice Rehnquist filed a separate dissent in which he argued a corporation does not necessarily need the right of political expression to carry out its functions, and the state law does not violate corporations’ Fourteenth Amendment protections. “Court observers were startled by the view of Justice Rehnquist, almost universally regarded as the most conservative member of the Burger court, on an issue with such powerful ideological consequences” the New York Times reported.  

This Day in Supreme Court History—April 22, 2014

On this day in 2014 the Supreme Court announced its opinion in Schuette v. Coalition to Defend Affirmative Action.

The case involved a 2006 amendment to the Michigan constitution, approved by a statewide referendum, that prohibited “all sex- and race-based preferences” in public education, employment, and contracting. The referendum was organized in response to Grutter v. Bollinger, the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s use of affirmative action. Following passage of the amendment, an alliance of progressive interest groups—the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary—challenged the amendment in court, claiming that it violated the Equal Protection Clause of the Fourteenth Amendment.

The Court denied the challengers’ claim. Six justices agreed that Michigan’s amendment did not run afoul of the U.S. Constitution, although they divided on their reasoning. Writing the opinion of the Court, Justice Kennedy insisted that the case was not about the constitutionality of using race as a factor in determining admissions, but whether states can choose to prohibit race preferences. This issue should be determined by the voters, Kennedy insisted, and nothing in the Constitution prevented them from concluding that government use of race classifications could “perpetuate the same racism such policies were meant to alleviate.”

The case produced several concurring opinions. Justice Scalia made clear his belief that the Equal Protection Clause not only did not prevent Michigan from adopting this policy, but that it required them to do so. Justice Breyer, who unlike the other justices in the majority had been a consistent defender of the constitutionality of affirmative action, wrote his own concurrence, emphasizing that regardless of one’s view on affirmative action, this was a matter that Michigan’s voters should be allowed to decide for themselves.

Justices Sotomayor and Ginsburg dissented. (Justice Kagan had worked on this case when she was Solicitor General and recused herself.) Justice Sotomayor wrote the dissenting opinion on behalf of herself and Justice Ginsburg, and, for the first time in her five years on the Supreme Court, she chose to read her dissent from the bench. In previous postings on this blog, I analyzed in some detail Sotomayor’s first oral dissent. Most of the remainder of this post draws from from those previous posts (available in full here and here):

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

 

Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position….

According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She concluded her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

Chief Justice Roberts wrote a short concurrence to take issue with Justice Sotomayor’s effort to frame the case as about the constitutionality of affirmative action rather than about deference to the decision making of Michigan’s voters. He wrote: “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

This Day in Supreme Court History—April 12, 1937

On this day in 1937, the Supreme Court handed down NLRB v. Jones & Laughlin Steel, a cornerstone of what became known as the “Constitutional Revolution of 1937.”

In National Labor Relations Board v. Jones & Laughlin Steel Corporation, ten former workers of Jones & Laughlin Steel brought a suit against the company, asserting that they were illegally fired after they attempted to unionize and join the Steel Workers Organizing Committee. The recently created National Labor Relations Board ordered Jones & Laughlin Steel to rehire the employees and compensate them for any back pay owed them.

The law that created the NLRB, the National Labor Relations Act of 1935, also known as the Wagner Act, was a critical component of President Franklin D. Roosevelt’s New Deal program of legislative reforms. An unprecedented attempt to address the unequal bargaining power dynamic between employers and employees, the Wagner Act prohibited employers from punishing employees for organizing or joining a union and required them to engage in collective bargaining with unionized workers.

Congress claimed authority to pass the Wagner Act under its power to regulate interstate commerce, enumerated in Article I of the Constitution. In challenging the law, Jones & Laughlin argued that its provisions regulating the bargaining relationship between employees and employers went beyond Congress’s commerce power.

After a string of controversial decisions striking down New Deal legislation, the Supreme Court changed course. In a 5-4 decision, the Supreme Court upheld the bargaining provisions of the Wagner Act. Chief Justice Charles Evans Hughes delivered the opinion of the Court, arguing that the commerce power extended to regulations designed to prevent a potential strike at Jones & Laughlin, since a work stoppage would have an “immediate, direct, and paralyzing effect upon interstate commerce.” “Collective bargaining is often an essential condition of industrial peace,” Hughes asserted, and a “refusal to confer and negotiate has been one of the most prolific causes of strife.”

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.

Should Democrats Filibuster the Gorsuch Nomination? Pro & Con

Here are the arguments for why Senate Democrats should filibuster:

  1. Garland. They need to protest what Republicans did to Judge Garland’s nomination last year. Democrats need to take extraordinary action to make it clear the extreme wrong of the Republican refusal to hold hearings.
  2. Gorsuch. Judge Gorsuch will be such a conservative justice that Democrats need to do all they can to try to stop his nomination.
  3. The Base. The progressive base and liberal pressure groups are energized and are demanding that Democratic senators do all they can to stop the nomination. Even if a filibuster is unlikely to prevent Gorsuch from taking his seat, it could be seen as a partial victory and might further energize the base for future battles.
  4. Long Game. The most likely consequence of a filibuster—i.e., the “nuclear option” of a Senate rules change that eliminates the filibuster for Supreme Court nominations—is not as bad as it sounds. A straight majority vote process might even allow a future Democratic-controlled Senate to get a more liberal justice onto the Court.

And here are the arguments for why Senate Democrats should not filibuster:

  1. Futility. The Republicans have the votes to change the rules, eliminate the filibuster, and put Gorsuch on the Court. Why not focus on battles that can be won?
  2. The Next Justice. Gorsuch is conservative but widely respected and clearly qualified. And he is taking the seat that had been occupied by the conservative Justice Scalia. Why not preserve the filibuster for a future court battle in which the nominee might be more problematic (less qualified and/or more extreme) and/or the current ideological balance of the Court will be at stake?

This Day in Supreme Court History—April 3, 1962

On this day in 1962, Engel v. Vitale, a seminal religious liberty case, was argued at the Supreme Court.

In 1951, the Board of Regents for the State of New York authorized a prayer for recitation at the start of each school day. The prayer read: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.” Students were allowed to opt out of participating.

Five parents of school children—two Jews, an agnostic, a Unitarian, and an Ethical Culturalist—sued the head of the board of education in New Hyde Park, New York, arguing that the prayer violated the First Amendment. The lead plaintiff was Steven Engel, one of the Jewish parents.

Arguing on behalf of the plaintiffs at the Supreme Court, attorney William Butler insisted the prayer doubly violated both the religious liberty provisions of the First Amendment. It violated the Establishment Clause, because the prayer expressed a preference for certain religious beliefs. And it violated the Free Exercise Clause, because it coerced children to participate in a religious proceeding.

Butler relied in particular on Justice Felix Frankfurter’s concurrence in McCollum v. Board of Education, a seminal 1948 Establishment Clause case. The lawyer directly addressed Frankfurter, who was still on the bench when the Court heard McCollum, noting that Engel’s claim relied heavily on the Justice’s “brilliant dissertation” in the McCollum decision in which he wrote, “the law of imitation operates and non-conformity is not an outstanding characteristic of children.”

“So far as I’m concerned, you may assume I remember it,” the Justice responded, eliciting laughter from the audience.

“Would the little child or would Johnny leave the classroom or would the parent be expected to ask the school system to excuse his child or who may be singled out as a non-conformist?” Butler asked. “And I must adopt Mr. Justice Frankfurter’s thesis in McCollum that the law of imitation applies and little children want to be with other little children.”

Butler explained that most of his five clients were religious and not opposed to prayer, but that it should not be incorporated into a public school system. Such incorporation is “the beginning of the end of religious freedom,” he said.

Justice William O. Douglas noted that when the justices enter the Supreme Court courtroom, there is an announcement, “God save the United States.” “Is that case on its way here?” the Justice asked Butler. “If it is, I’m glad I’m not bringing it,” Butler replied.

Butler also borrowed from language in Chief Justice Earl Warren’s opinion in Brown v. Board of Education, where Warren wrote that “to separate children from one another solely because of their color may leave an indelible mark upon that child for the rest of his life.” Butler argued religious separation would also be an “unfair separation” which could leave an indelible mark on a child’s mind.

To his opponents’ argument that his clients were a minority trying to impose its views on the majority, Butler explained: “Our answer to that is simple. We say that the Constitution, the very purpose of the Constitution, is to protect the minority against the majority. It’s to protect the weak against the strong in matters of keeping separate forever the functions of the civil and the religious.”

To Justice Potter Stewart observation that the prayer did not specifically address a Christian God, Butler replied that the Board of Regents’ decision about the prayer referred the God as “him,” and Judaism does not necessarily believe in a male god. “It believes that God is coming,” he said. “Now what form that God is going to take may be a different matter.” Butler also argued the prayer excludes Orthodox Jews because such Jews pray only in synagogues, only with yamakas on, only in Hebrew and some pray only facing east.

Stewart also asked Butler whether he objects to the recitation of the National Anthem with the words “Under God.” Butler said he does not object to the recitation of the anthem in schools because it is essentially a “political utterance” and not a religious one.    

Representing the Board of Education, attorney Bertram Daiker said the district received only one request since 1958 for a student to be excused from participation in the prayer, and no requests to be excused from a classroom. The Declaration of Independence has four references to “the Creator,” and the Supreme Court had “said many times that ‘we are essentially a religious people,’” he said.

Chief Justice Warren challenged Daiker by asking whether he would approve of the Court’s requiring every litigant before it to deliver the prayer in question. Daiker said he would not approve because such a compulsion would be unconstitutional. Justice Hugo Black pressed him on whether the children’s enrollment and attendance were compulsory. Daiker countered that most of the district’s parents know their children can opt out of the prayer.

Justice Warren stated that Butler’s clients object to the recitation of a prayer in schools “where they will be indoctrinated with the prayer as a matter of training and where they will be held up to contempt or ridicule if they or their parents should want them to be excused and pointed out as being different from the rest of the children.” Daiker responded, stating the prayer is not the teaching of religion, but merely “acknowledging publicly that we have a god.”

Also defending the law at the High Court was Porter Chandler, who represented sixteen parents who supported the prayer. He argued his clients “feel very strongly that it is a deprivation of their children’s right to a share in our national heritage and that it is a compulsory rewriting of our history in the fashion of George Orwell’s 1984 to do what these petitioners are now seeking to do.”  Chandler also stated that states in at least half of country included daily prayers, Bible readings, or hymns in their public schools.

On June 25, 1962, the Court ruled 6-1 in favor of Engel, holding that the state-mandated prayer, despite its nondenominational character and the possibility of a student opt-out, violated the First Amendment. Justices White and Frankfurter did not take part in the decision; Justice Stewart dissented.

 

The Gorsuch Report—Going Nuclear?

It’s showdown week for the Gorsuch nomination. Today, the Senate Judiciary Committee debates and votes on the nominee. Democratic committee members scored a minor victory after the hearings had concluded when they were able to head off the effort of Republican committee members to have a quick vote on Gorsuch. The Democrats asked for more time so they could receive and review written responses to questions posed by the senators. The Committee vote on Gorsuch today is expected to fall along party lines (11 Republicans in support; 9 Democrats opposed).

Then the real fireworks are expected when the nomination comes to the full Senate.

Senate Majority Leader Mitch McConnell has announced that the Senate will vote on the Gorsuch nomination by the end of the week, in advance of Congress’s two-week recess. The first step to get to a Friday vote will be for McConnell to move for a full-Senate vote for cloture (i.e., to end debate and bring the nomination to a Senate vote). Under current rules, invoking cloture for a Supreme Court nominee requires 60 votes.

Some Democrats, led by Senate minority leader Charles Schumer, have vowed to filibuster to prevent a vote. To pull this off, Democrats need to secure at least 40 of their 48 senators to vote against moving the nomination to a full Senate vote.

Do the Democrats have the votes? It’s not clear. So far, three Senate Democrats—Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), and Joe Donnelly (Indiana)—have said they would vote for Gorsuch. (Each represents a state Trump won in November and each is up for re-election next year.) Thirty-six have said they support a filibuster. It’s going to be a close call.

If the Democrats do successfully filibuster the Gorsuch vote, McConnell has made clear that he will use the so-called “nuclear option,” meaning that Republicans will change the Senate rules so that filibusters are no longer allowed for Supreme Court nomination votes. (In 2013, a Democratic-controlled Senate did away with filibusters for lower court nominees.)

What are the Democrats hoping to achieve? Some have suggested that the collapse of the Republican effort to rewrite the Affordable Care Act has emboldened the Democrats, and their leaders are trying to take advantage of the moment to show their unity and strength. Liberal pressure groups are demanding that Democratic senators take a stand. Perhaps some even believe they can win this battle. Senator Schumer has said that he believes Republicans can’t get the sixty votes required for cloture.

Is this a wise strategy for the Democrats? Harvard’s Cass R. Sunstein thinks not. “Two wrongs do not make a right,” he writes in his BloombergView column. “The system for confirming Supreme Court justices is badly broken, and if you insist that it’s all about power, it will stay that way.” Sunstein’s colleague Noah Feldman finds more strategic grounds for the same conclusion: “Neil Gorsuch is no progressive. But liberals could do worse—much worse. And it’s the Senate Democrats’ job to do what they can to reduce the risk of an unqualified, radical Trump nominee in the future.” In the Daily Beast Eric Segall also argues against the filibuster; Rick Hasen does the same in his Election Law Blog. For a sampling of the case for the filibuster, see Joshua Holland writing in the Nation and Bill Scher in Politico.