- The Washington Times - Monday, July 11, 2005

The U.S. Supreme Court is too important for mediocrities. The justices chronically write ill-reasoned opinions that sow rather than dispel confusion. Insipid minds incline toward major constitutional blunders.

Justice Henry Brown pronounced the “separate but equal” doctrine in Plessy v. Ferguson (1896); Justice Rufus Peckham embraced free enterprise and Herbert Spencer’s Social Statics as constitutional mandates in Lochner v. New York (1905); Chief Justice William Howard Taft declared wiretapping and electronic surveillance outside the limits of the Fourth Amendment in Olmstead v. United States (1928); and Justice Harry Blackmun summoned into being a constitutional right to abortion in Roe v. Wade (1973).

President George W. Bush should thus resist the personal temptation to appoint Attorney General Alberto Gonzalez as opposed to trenchant legal thinkers to the Supreme Court. That resistance should be fortified by the outlandish opinion of Justice David Souter, appointed by President Bush’s father, holding unconstitutional the posting of the Ten Commandments in two county courthouses in McCreary County Kentucky v. American Civil Liberties Union of Kentucky (June 27, 2005).

Both Mr. Gonzalez and Justice Souter inhabit a mediocre intellectual universe. Thus, the former could be expected to author opinions that smack of McCreary County.

The First Amendment prohibits Congress from enacting laws “respecting an establishment of religion,” such as erecting a national church or punishing recusancy or heresy. The establishment clause does not forbid official acknowledgments of religion or God, as in the Declaration of Independence or in Thanksgiving Proclamations issued by various presidents. Further, the Congress that endorsed the Bill of Rights provided for legislative prayer, a practice that endorsed religion yet was sustained in Marsh v. Chambers (1983).



The establishment clause did not create a “heckler’s veto” right to silence any noncoercive official recognition of God to avoid anxieties in nonbelievers. Indeed, the First Amendment’s protection of free speech and freedom of religion contemplate confronting citizens with differing or infuriating expression.

As the Supreme Court elaborated in Terminiello v. Chicago (1949), free speech “may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” The government itself speaks every day in ways that please some but anger others. Citizens in a democracy should expect to tolerate opposing ideas or creeds without psychological trauma or distress.

Justice Souter preposterously concluded in McCreary County that a passive display of the Ten Commandments in a courthouse violated the establishment clause because the posting’s predominant purpose was religious, not secular. Accordingly, nonbelievers who viewed the Commandments might have felt psychologically alienated or distraught.

Assembled with the Commandments were framed copies of the Magna Charta, the Declaration of Independence, the Bill of Rights, the lyrics of ” The Star Spangled Banner,” the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution and a portrait of Lady Justice. The collection of the nine documents was titled “The Foundations of American Law and Government Display.” No codicil to the Commandments instructed viewers to choose between obedience and damnation.

Two previous Commandment postings were withdrawn because their purpose was transparently religious. The Pulaski County Judge-Executive, for example, presided over a ceremony to commemorate the initial posting accompanied by the pastor of his church. The latter acclaimed the Commandments display as “one of the greatest things the judge could have done to close out the millennium.” Justice Souter insisted the earlier illicit constitutional motivations, like original sin, condemned any later county efforts at redemption through a posting substantially calculated to educate rather than proselytize. In any event, he maintained, an educational purpose was bogus because the nine-document display and commentary were scholastically suboptimal, for example, omitting the Fourteenth Amendment and failing to recognize government by the consent of the governed as the yardstick for legitimacy celebrated in the Declaration of Independence.

Government officials, however, customarily act from multiple motivations. Religious and educational purposes may converge in a display of the Commandments. Although the associate justice protested: “[W]e do not decide that the counties’ past actions forever taint any effort on their part to deal with the subject matter,” he was clueless as to how the local governments could escape constitutional purgatory.

Justice Souter asserted political divisiveness along religious lines was the cardinal establishment clause evil. But in finding an illicit purpose or endorsement of religion in displaying a religious text, the justice projected the likely reaction of a nonexistent hypothetical person omniscient about every historical and contextual detail of the government decision. But imaginary people do not start religious brawls or altercations.

Justice Souter lectured that the establishment clause is informed by “the principle of neutrality,” i.e., government may not favor one religion over another, or religion over irreligion. But he is wrong. Legislative prayer, the Pledge of Allegiance, and the National Motto all favor religion over irreligion and theistic over nontheistic creeds.

Requiring opposition to all wars as a condition for treating a citizen a conscientious objector favors some religions over others. In sum, his neutrality principle means whatever he wants it to mean, a standard fitting for “Alice in Wonderland” but not for the Supreme Court.

If President Bush appoints Mr. Gonzalez, the conservative protest of “No more Souters” will be mocked.

Bruce Fein is a constitutional attorney and international consultant with Bruce Fein & Associates and the Lichfield Group. He has prepared an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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