Bad Judges Make . . . Bad Law!

From which we learn that there are some things worse than a Supreme Court Justice, just do us the favor of not asking what those worse things are.

Another famous old saw for lawyers and judges is that "hard cases make for bad law." That saying was honestly adopted by American courts from the common law decisions of English courts. Originally, the saying explained why judges refused to make an exception from the normal rule of decision even when facts that some considered compelling seemed to require judicial bending of the law. The saying typically was rendered in the manner of this quotation from the Supreme Court, "'it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'" United States v. Clark, 96 U.S. 37 (1877) (quoting East India Company v. Paul, 7 Moo. P. C. C. 111). In that incarnation, the saying explains the constancy of judgment that should be the hallmark of justice.

Unfortunately, over time, the saying evolved into an explanation for decisions that could not be squared with settled principles of law. So, when the settled rule of law required a judge to conclude that 1 + 1 = 2, commentators would try to assuage the concerns of parties, affected persons, and the public by a dastardization of the old saying, whenever an errant judge concluded that the sum was 3 but 2. "Hard cases," the court watcher would intone, "make for bad law." So neutered, the saying became an excuse for judicial misconduct. Had not the earlier courts clearly held that it was '"the duty of all courts of justice to take care ... that hard cases do not make bad law'"? If so, then the rendering of bad law should not have been justified by the thinly veiled excuse, "well, it was a hard case." But excuse and justification describe exactly what the saying now embodies. Once an admonition to a higher standard of conduct, the rule is now a license to deriliction of duty.

Truth be told, it really never was the hard cases that made for bad law. That explanation only satisfied those who would be inclined to believe that nobody broke the lamp or that the dog ate the homework. Instead, it was bad judges who made bad law. Never was that fact more obvious then when the combined wisdom of American jurisprudence, the justices of the Supreme Court of the United States, sat down to issue opinions and orders on June 19, 2000. For that day a majority of the Court's Justices cried "Havoc!" and let slip, once again, the hounds of the war against religious freedom. In an opinion by Justice Stevens, six justices concluded that the tiny school district of Santa Fe, Texas, extravagantly violated the Establishment Clause of the Constitution. The violations consisted of allowing high school students to decide whether they would have a brief message or invocation during the pregame ceremonies of home field football games, and of allowing the students to cast votes to select the student who would offer the message or invocation. Only three justices of the nine disagreed, Associate Justices Scalia and Thomas joining a dissenting opinion authored by Chief Justice William Rehnquist.

Here are some facts to bear in mind as we peer into the seemy underbelly of the Court's decision:

• The settled rule of law observed by our Nation's High Court -- up until this decision -- severely limited the occasions in which someone disaffected with a governmental rule or policy could bring a legal challenge to that policy. The normal rule, limiting federal courts to the decision of actual controversies, barred so called "pre-enforcement" challenges.



• The United States Supreme Court never has held that a school district may not accommodate students' rights of freedom of speech or of religion, until the decision in this case.



• Since 1969, when the United States Supreme Court issued a decision in Tinker v. Des Moines Independent School District that upheld the right of dissenting students to wear black armbands in public schools to symbolize their opposition to the role of the United States in Vietnam, the settled rule of law was that students were persons protected by the Constitution. In light of that rule --until the decision in this case -- it was accepted as commonplace that students did not surrender their constitutional rights when they passed through the school house gates.



• Of the six justices in the majority, fully two-thirds were Republicans when they were nominated to the high Court by Republican presidents. Those justices include Stevens, the author of the majority opinion, Sandra Day O'Connor, Anthony Kennedy, and David Souter.

The facts of the case were, in a word, simple. After years of litigation involving challenges to the practice of allowing prayer at high school graduations and assemblies, a pair of complaining families finally asked the Court to consider whether the practice of including a prayer as a part of pre-game ceremonies before home football games violated the Constitution. The first problem for the trial court was that the Santa Fe school district did not have an express policy on prayer at football games. So the trial judge stated that if Santa Fe wanted to allow prayer at football games it had best put its unwritten practices and policies into writing. The school district promptly complied with the court's direction.

Sensitive to the changing jurisprudence regarding government policies that accommodate student religious activities, the school district drafted a policy that allowed student speech, not just student prayers. The text of the regulation struck down by the Stevens gang allowed the student body at Santa Fe High School to conduct to elections; first, they could vote on whether to include a message or invocation in the pre-game ceremonies each year; second, if the vote directed the inclusion of such a message or invocation, the students held a second election to choose a student as speaker. Thereafter, the student chosen to be the speaker could decide what kind of message or invocation to give.

One problem with the facts of the case was that there never was any evidence in the record of the case about the kinds of messages and invocations that were being offered under the new policy. The simple reason for that omission from the evidence was the premature nature of the litigation. There just had not been any messages or invocations given before the school district was enjoined from carrying out its newly adopted policy.

Those familiar with the Santa Fe case from the coverage given by the news media to the Court's decision might have a vastly different impression about the facts of the case. If they insisted that their impression was based on facts, rather than media misrepresentations, they would be quite patently wrong. Because there never was a message or invocation under the challenged policy, those perplexed by the descriptions of Justice Stevens' opinion that appeared in major media will have to live with the fact that Justice Stevens abused his role as a jurist by misstating the facts in his opinion. But it should never be said that Justice Stevens was unfair; having misstated the facts, he was bound, apparently by the terms of his ironclad sale of his soul to the devil, to misstate the law as well. This he did with an aplomb becoming of the sort of Republican from whose circles he was selected.

Significant sacrifices had to be set up on the altar of Stevens' hostility to accommodation of religion in public life. First, Stevens and his gang rejected the governing constitutional precept that the Court limit itself to actual cases and controversies. As Truthserum readers may recall, the Framers of the Constitution, writing in the Federalist Papers, called the judicial branch the least dangerous branch of the government because it exercised only judgment and not will nor force.

The exercise of force belongs to the executive branch; the exercise of will belongs to the representatives of the people in the legislative branch. When courts decide hypothetical cases, that carefully drawn balance is as surely thrown off kilter as a butcher's scale is by the presence of his thumb along with your sirloins. In those circumstances the Court is behaving like the legislature, stating what the policy of the government shall be. But in the Santa Fe case, where no facts had yet developed, it was precisely a hypothetical case that Stevens decided.

As if that organic injury to the Constitution were not a sufficient sacrifice, Stevens and his crew also demanded the ultimate sacrifice from students: that they surrender their constitutional rights to freedom of speech and of religion. The Santa Fe policy encouraged speech, and accommodated religious speech along with all other speech that a chosen student might render. Justice Stevens' decision, on the other hand, presupposes illicit motivations in an accommodating school district and compels fiscally strapped school districts to limit or eliminate occasions for student speech activities during school sponsored events.

As a consequence of the Court's decision in the Santa Fe Independent School District matter, substantial confusion has been injected into the public school context regarding the rights of students and the constitutionality of school district decisions to accommodate the religious needs of their students.

Every school year, groups such as the American Center for Law and Justice, the Liberty Counsel, the Center for Law and Religious Freedom, the Becket Fund for Religious Liberty, and the Rutherford Institute are beseiged by requests for aid from students whose rights to free exercise of religion and freedom of speech and of the press are suppressed in the public schools of our Nation. These requests detail a litany of hostility to religious expression and religious students in the public schools; in many additional circumstances, school officials suppress constitutional rights of religious students out of ignorance rather than hostility.

The encyclopedia of wrongs done includes such real life incidents as:

• threatening students with pepper spray who had gathered quietly to pray before the school day began in observation of the National Day of Student Prayer;



• arresting and handcuffing students who participated in "See You at the Pole" events as part of the National Day of Student Prayer;



• denying students the right to read their bibles while riding on public school buses;



• denying students the right to read their bibles during breaks, lunches, study halls, and independent reading periods;



• refusing to recognize the rights of students to organize and conduct bible clubs and prayer groups, even though required to do so by the federal Equal Access Act;



• denying students the right to wear clothing with religious messages even though other students are permitted to wear clothing with other messages, including commercial endorsements;



• denying students credit for completion of assignments when their work includes religious materials or references;



• censoring student speeches to eliminate references to religion and God; and,



• refusing to allow student bible clubs and prayer groups to participate in the school's annual club fair, the school's talent show, the Homecoming Parade, or to be depicted with other student organizations in the school yearbook.

Now, in light of the Santa Fe decision, and the evident hostility to religion that marks the language of the majority opinion, it is reasonable to predict an increase in the number of incidents of violations of students rights. These incidents will be the consequence of the confusing morass that is the Stevens opinion. Likely, this result will please Justice Stevens. Justice Stevens has been persistently an opponent to religion in his decisions while on the Court.

Just a few Terms ago, he dissented from a decision affirming the right of a noxious organization, the Ku Klux Klan, to display a cross in a public square in Ohio. Perhaps this would be excusably understandable if his reason for doing so was the odious racial and religious bigotry of the KKK. Instead, however, Stevens concluded that such free-standing displays in public places, when they consisted of religious emblems, had to be suppressed because of the risk that some passers by might attribute -- albeit wrongly --religious motivations to the government on whose property it was displayed. In numerous other instances, frequently alone, he has called for a return to the days when the Supreme Court, at the behest of the public education establishment, enforced a "high and impregnable wall of separation" between church and state.

Yes, we have to turn for a moment, before concluding this commentary, to the dapper little man responsible for the present state of affairs. Stevens is one of those justices who has championed on the Court the constitutional right to possess obscene videos, books and films. His written opinions in cases involving the possession, transportation, mailing, and production of pornographic obscenities consistently doubt the interest of the government in regulating or restricting such materials.

Stevens has not confined his views on this point to cases involving so-called "adult" materials. In a case challenging a New York statute prohibiting the use of children in making pornography and the possession of materials containing such depictions, Stevens lamented the Court's reliance on the State of New York's interest in protecting the children in that state from exploitation as a justification for the ban on possession of materials containing such depictions. In his view, if a video was made in another country and contained such a depiction, New York could not justify the suppression of the right to possess such materials on the ground that it was protecting its children. Justice Stevens, of course, does not comprehend the fire that lust, lasciviousness, and concupiscence are, as taught in the Bible.

Nor does dapper little man stop at using the political right to freedom of speech as a means of protecting trash. Stevens has always championed the right of a woman to choose to kill her unborn child. Although he came to the Court after the decision in Roe v. Wade, in each case that presented the possibility of retrenching upon Roe or actually overturning the decision, he has sided with those justices who wished to maintain a woman's right to kill her offspring before birth. Consistent with his approval of a woman's right to choose to kill her unborn offspring, Justice Stevens has also joined with the Court in rejecting state laws limiting access to contraceptives for unemancipated minors.

And, given all the foregoing, it must be unsurprising that Justice Stevens rejects the right of States to criminalize sodomy. Stevens dissented from the Court's decision upholding a Georgia sodomy statute against a federal constitutional challenge.

Of course you are free to disagree with Truthserum on this point. But the case seems more than adequately made that the bad decision of the Supreme Court on student prayer before football games is the unsurprising consequence of tolerating a bad judge on the bench of our Nation's highest court. In sum, then, we can say that Justice Stevens makes bad law.

Truthserum
thetruthserum@yahoo.com

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