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Cracks in the Wall

The Supreme Court is moving with alarming speed to abandon core values—such as the wall of separation between church and state—that have allowed minority religious communities to flourish in America. Mark Pelavin, the associate director of the Religious Action Center of Reform Judaism, reflects on the judgments of the Roberts Court and what we can do to affect the future of American justice.

Now that the Roberts Court has completed its first session with Samuel Alito on the bench, what lessons can we draw?

One of the most important lessons is the most obvious: it matters who sits in those nine Supreme Court seats. Justices are not interchangeable. Some of the 5–4 decisions—certainly the so-called partial-birth abortion case (Carhart), which upheld a ban on a specific abortion procedure; and the campaign finance case (Wisconsin Right to Life), which redefined the level of assistance a tax-exempt organization could provide to political candidates, including allowing advertisements—might have come out differently had John Roberts not been chief justice or had Samuel Alito not been confirmed.

I am sometimes asked, if all of the justices are working with the same raw material—the same statutes, precedents, and, of course, the same Constitution—why don’t they come to the same conclusions? The reason is that each justice brings to the bench his or her personal background, experiences, prior rulings, politics, ideology, and much more. It’s naive to think otherwise. Judges aren’t automatons, nor should we want them to be. We need thinking, breathing judges to apply the Constitution and congressional statutes to the messy facts of life.

What role has John Roberts played in his second full term?

Unfortunately Roberts has not yet lived up to his stated goal: to bring greater unity to the Court and greater clarity to the Court’s opinions. In his confirmation hearings he spoke powerfully about the importance of a chief justice marshalling the Court toward consensus decisions. Apparently he understood that the Court best exercises its authority, especially its moral authority, when it speaks with one voice. Instead, in key cases we saw a splintered Court with the justices divided 5–4. Consider the difference between the Warren Court’s unanimous 9–0 decision in Brown v. Board of Education (1954), which overturned previous Court rulings upholding segregation, and this year’s narrow, fractured, and ambiguous ruling in Parents Involved in Community Schools v. Seattle School District No. 1. In its decision the Court held open the theoretical possibility of race-conscious steps to address segregation, but struck down the specific desegregation plans on the table and provided no real guidance as to what steps schools could take.

How would you describe the composition of the Court today?

Today’s Court is comprised of two main voting blocs—Justices Ginsburg, Breyer, Souter, and Stevens on the liberal side; Justices Scalia, Thomas, Alito, and the Chief Justice on the conservative side. Then there’s Anthony Kennedy. His approach is unpredictable—his critics call it “idiosyncratic” and his supporters call it “nuanced.” On abortion rights, for example, he’s sometimes been the key vote upholding a pro-choice decision, and sometimes the key vote on limiting a woman’s right to choose. In the religious liberty arena, he’s almost always been the key vote—sometimes on the side we’ve supported, as in Lee v. Weisman (allowing a rabbi to offer a prayer at a public middle-school graduation); and sometimes on the opposite side, such as Allegheny County (voting to uphold the display of a nativity scene on public property). Kennedy’s vote is so crucial, everyone is pitching to him—the litigants as well as all those submitting amicus (friend of the court) briefs.

Do the religious beliefs of the justices influence their decisions?

I think not, although there’s been a great deal of commentary this year about the fact that the five justices most often making up a 5–4 majority (Roberts, Scalia, Kennedy, Thomas, and Alito) are all Catholic. The Court’s two current Jewish members—Ginsburg and Breyer—do also tend to vote together. On the one hand, I believe that justices don’t explicitly or consciously apply their personal religious beliefs in their rulings. Still, religious beliefs are likely to color and shape the world views of justices as they do for most of us.

What are the implications of the recent Court ruling on government funding of religious institutions?

The Court’s 5–4 ruling in Hein v. Freedom from Religion Foundation,which bars individual taxpayers from challenging government expenditures that might violate the separation of church and state, will make it much more difficult to contest government funding of religious institutions, such as the $2.1 billion in faith-based grants U.S. federal agencies awarded religious organizations in 2005 alone (under the president’s “Charitable Choice” plan). The Court’s decision is another crack in the wall of separation between church and state—a wall that has protected minority religious communities from the often heavy hand of government and has allowed Jews to flourish in America.

Unfortunately, nowadays Supreme Court deliberations are often aimed at the very foundation of the principle of church-state separation. In the past, debates concerning the Establishment Clause were either over specific applications of the Court’s own decisions interpreting the Constitution or over current policies, such as can a school provide a sign-language interpreter to a deaf student who attends Catholic school (the Court said yes in Zobrest). Recent deliberations ask a bigger and more dangerous question: is it or is it not the role of government to promote religion?

Do other trends in the Roberts Court concern you?

I am very troubled by the way this Court is disrespecting precedents. Our legal system demands consistency and predictability; the system cannot work when the rules keep changing. Yes, it’s possible that an old precedent may need to be overruled, but the Court should do so rarely and carefully.

To me, the Hein case illustrates this Court’s willingness to walk away from its own past decisions. Hein turned on the interpretation of a forty-year-old case: Flast v. Cohen. Flast, an 8–1 decision, had been understood almost universally as allowing taxpayers to challenge government spending that they believed violated the Establishment Clause’s prohibition of government funding of religious institutions. While in Hein the Court claimed it was not overruling Flast, functionally it did just that. The decision rested on the fact that the newly challenged funding had been directed by the Executive Branch (under a broad grant of discretion from Congress) rather than under a specific congressional appropriation (as was the case in Flast).

The general rule has been that when the Supreme Court hands down a decision, it intends to address an area of the law and not just the narrow facts of the specific case before it. We have seen a dramatic shift away from this rule by the Roberts Court, which has often defined its holdings so narrowly that every new fact pattern requires new litigation. The Parents Involved in Community Schools v. Seattle School District No. 1 school desegregation case I discussed earlier is perhaps the best example from this term; no one—school boards, legislators, school administrators—has any idea how to apply it.

What issues will come up next?

It’s unclear which issues the Court will consider next. If the trend of the past few years continues, however, it will take more time before the Court hears these issues because it is taking fewer and fewer cases. We can expect almost everything on our Movement’s social action agenda—such as religious liberty, church-state separation, reproductive rights, equal rights for gay men and lesbians, and protecting the environment—to come before the Court in due course. In 2006, for example, the Court heard sixty-eight cases, approximately one-third of the cases the Warren Court heard in a typical year. The implications of this reduction are considerable because the decisions of lower courts, most often the circuit courts of appeals, are then the final judicial word. This leads to a lack of uniformity across the nation—constitutional rights are given one meaning in certain states and another reading in others. Going forward, that means that just as we pay close attention to nominations for the Supreme Court, we will have to pay more attention to circuit courts of appeals nominees, taking action when candidates’ positions are outside the mainstream.

Are there any indications that the Court will overturn Roe v. Wade?

I wouldn’t be at all surprised if a case directly challenging the constitutionality of Roe v. Wade—something which the Bush Administration has already asked for in a couple of cases—were to find its way into the Court’s docket in the next term or two. There have already been two significant partial-birth abortion cases decided by the Roberts Court. This term the federal ban on partial-birth abortion was upheld in Carhart. And last term the Court decided unanimously (in Ayotte) that the lack of a health exception need not invalidate the entire statute, and with it, the ban of partial-birth abortion, but could be redressed with an injunction barring the statute’s enforcement in a case where the woman’s health was in danger.

It takes only four votes in the Supreme Court to decide to hear a case. There are certainly four justices who are interested in having a conversation about whether the Constitution guarantees a women’s right to terminate a pregnancy, even if they don’t yet have a fifth vote to overturn Roe.

If the Court overturns Roe, would Congress pass a law safeguarding reproductive rights?

I hope it would, but there’s no guarantee. If such a bill were to come before the current Congress, it would be a very close vote. And even if this closely divided Congress passed such legislation, President Bush would veto it. Pro-choice supporters would have to find sixty-seven votes in the Senate and 290 in the House to override a veto, and I don’t see that happening.

Still, I believe there would be serious repercussions if the Court were to strike down Roe v. Wade. A political fuse would be lit among millions of women, and not only women, that would greatly change the country’s political dynamic. Moreover, reproductive rights might well become the defining issue determining the outcome of the congressional election that follows.

Should our Movement be involved in public debates over nominees?

Absolutely. I am proud that the Union for Reform Judaism was one of two major Jewish organizations to publicly oppose the nomination of Samuel Alito because of his record of hostility on the bench to individual rights. (The National Council of Jewish Women was the other.) Most Jewish organizations remained on the sidelines because they still cling to some outdated notion of propriety which holds that we can’t express an opinion about who should be on the Supreme Court, as if judicial nominations were not political. What nonsense! Saying that you are against the politicization of the judicial selection process is like saying that you’re against gravity.

We should make no apologies for taking sides. Our community has fought too hard for the gains we have made and too much is at stake for us to stand on the sidelines. Keep in mind that the Warren and Burger Courts expanded the rights of women and minorities, our civil liberties, and both religion clauses (protecting the “free exercise” of religion as well as prohibiting the “establishment” of religion), strengthening America’s culture of religious, racial, and ethnic pluralism and tolerance. This Court, however, is moving to abandon those core values with alarming speed, and with far-reaching implications for both Jewish interests and values.

So what can we do to impact the judicial process?

The essential principle of judicial independence limits—if not restricts entirely—the ability of the public to hold judges accountable for their decisions. But each of us can have an influence in the political arena.

The most important forces in shaping the federal bench are members of Congress and the president, and most members of the Senate are open to persuasion on any given judicial nominee. By making your voice heard during the Senate’s “advise and consent” process in considering judicial nominees, you can influence the composition of our federal courts. And just because you may not receive a response to a call, letter, or email you’ve sent to members of Congress, don’t think you’re not being heard. Congresspersons are hard-wired for getting reelected; they’re very attuned to what the voters are saying.

Do you think the Senate would confirm another conservative nominee?

It depends on the nominee and the timing. The window in which a nominee could be considered before the 2008 election is rapidly closing. Another Alito, someone with a long paper trial and very conservative views on a range of issues, might have difficulty getting confirmed. That would likely not be true of a well-respected non-extremist like Roberts, who was confirmed with very little opposition.

Understand that for advocacy groups such as the Religious Action Center, and I think for senators as well, it is generally accepted that the president is entitled to his nominees. The question for us all is, “Is this particular nominee so far outside the mainstream that he or she must be opposed?” As we saw in the case of Alito, even someone outside the judicial mainstream has a good chance of getting the green light because in our deeply divided Senate there’s not much consensus on anything; besides, as a practical matter, it takes sixty votes to block a nominee, a very high threshold to reach. Still, if a great many constituents were more active in voicing their disapproval of a nominee, it could very well make a difference.

Are any justices likely to retire before the ’08 presidential election?

It’s hard to imagine any justices retiring soon. Justice Stevens, 87, the longest-serving member of the Court (he was appointed by President Ford in 1975), is unlikely to step down and allow this president to appoint his replacement. Justice Ginsburg, 74, has had some health issues in the past, but she’s been on the bench this entire term with a full workload. But Chief Justice Robert’s health issues this summer remind us that vacancies could come at any time.

So where do we stand in relation to the Court today?

I’d return to the metaphor of the wall of separation between church and state. There’s no immediate danger of the wall crumbling, but on issues of critical importance to the Jewish community and the nation as a whole, there is a very real danger: a gradual weakening, the foundation cracking, gaps emerging…. Therefore, it’s incumbent on all of us to be vigilant and let our voices be heard on every issue and on every nominee that might undermine the structure upon which our constitutional protections stand. As any homeowner can tell you, a foundation or retaining wall can weaken for years and years without making a difference... until all of a sudden it makes all the difference in the world. I think that’s the kind of dangerous place we’re in right now with the Court.

More info
  • on these Supreme Court cases
  • on recent battles over judicial nominations
  • on the URJ policy statement on judicial nominations
  • on the Religious Action Center of Reform Judaism

visit .


Union for Reform Judaism.