Conservative activism on the Supreme Court


Sometimes being a U.S. Supreme Court justice is very hard work.

After all, justices are required to divine just what the founders really meant back when they wrote the United States Constitution in an age when guns meant muskets and mass communication meant posters nailed to posts — and then apply it to today’s high-tech world as a true and faithful justice.

But other times, just every now and then, being a Supreme Court justice shouldn’t be hard work at all. Not even heavy lifting.

Because occasionally justices can make use of a vast collection of de facto constitutional Cliff Notes, in which the Founders themselves explain what they were really thinking and meaning.

If conservatives really wanted to be strict constructionists, this would be an invaluable tool. But when conservatives want to be political activists, they have been liberally discarding such inconveniences as intent and even precedence. As in a Supreme Court ruling Monday that was bizarrely out of synch with what the court’s conservative majority had to know the framers wanted.

In a sharply divided 5 to 4 vote, the Court ruled that legislative assemblies such as town councils can start their sessions with prayers that regularly follow the precepts of one religion, such as Christianity. Invoking Jesus Christ and the Resurrection is okay too. The decision that started in the small upstate town of Greece, N.Y., may well have set thoughtful minds boggling throughout the land. It probably started one body whirling beneath its famous gravestone in the Virginia countryside at Monticello, where Thomas Jefferson thought he’d clarified all of that centuries ago and could finally rest in peace.

Time out: We interrupt this column for a quickie quiz that will help us identify those most in need of reading all the way through it.

QUESTION: The place where the U.S. Constitution clearly states that there must be a “wall of separation” between “Church” and “State” is known as:

A) The First Amendment.

B) The Second Amendment.

C) Somewhere else in the Constitution and its Bill of Rights.

D) Nowhere at all, silly; everyone knows “separation between church and state” never appears in the Constitution or Bill of Rights.


So read on. The Constitution’s First Amendment begins with what has become commonly referred to as the “Establishment Clause” — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” But Jefferson wisely understood the importance of leaving no doubt about the intentions of the Framers. And so, on Jan. 1, 1802, as America’s third president, Jefferson picked up his pen and wrote his historic letter to the Danbury Baptist Association in Connecticut. In it, Jefferson carefully used the “separation of Church and State” phrase that he figured would make leave no doubt, for all time, in learned minds.

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Fast-forward a couple of centuries. In Chicago, a family packed up the car and moved to Florida. There, a fourth grade boy who had never seen religion made a part of public school, was shocked to discover that he was being told he had to read passages from the King James version of the Bible, and bow his head in prayers that evoked Jesus — even though that was not his family’s religion.

He didn’t want to make a scene or advertise that he must be different. So he never protested aloud; he just never closed his eyes during prayer. But he felt an inner shame (and frankly I’m still not pleased with the way I handled that).

In Greece, N.Y., from 1999 to 2007 every town hall meeting reportedly began with a Christian prayer, which apparently was fine with today’s five conservative activists. Justice Anthony M. Kennedy emphasized in the majority opinion that, after all, the town council didn’t blatantly intimidate non-Christians. Justice Clarence Thomas, went further than his majority colleagues, questioning whether the establishment clause even applies to states or local bodies at all. Maybe only the national government cannot establish a national religion, he opined. But states and localities can?

The reasoning process of the conservative majority (all five are Catholics) is nothing short of horrific; they just don’t get how intimidation happens. The four dissenters (three are Jewish, one is Catholic; yes today’s Court has no Protestants) understood the dangers of silent religious intimidation. It can be strong enough to shatter the wall of separation between church and state, built brick by brick by founders who expected it would forever make America special.

Martin Schram, an op-ed columnist for McClatchy-Tribune, is a veteran Washington journalist, author and TV documentary executive. Readers may send him email at

©2014 McClatchy-Tribune Information Services

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