The Nine

by Jeffrey Toobin

  The decision prompted the first full-throated dissent of Breyer’s career. “In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century,” he wrote. Worse, he said, the majority’s decision represented a major threat to many other laws on the books. “Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words ‘affecting commerce’ to define their scope,” Breyer wrote. “The Court’s holding…threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled.” But that, of course, was the point. The seeds sown by the Federalist Society and its allies were starting to bear fruit.

  Like the other justices, Breyer knew the famous question that William Brennan used to ask his law clerks. What’s the most important law at the Supreme Court? The clerks would puzzle for some time. Freedom of speech?…Equal protection?…Separation of powers?…until the justice would raise his tiny hand and say, “Five! The law of five! With five votes, you can do anything around here!” Breyer, who clerked on the Court in its liberal heyday, would remark when the Brennan story was told, “Easy for him to say. He started with seven votes.” But Justice Stephen Breyer served on a very different Court. In the summer after Lopez, a friend praised him for his opinion in the case. Breyer gave a wistful smile and waved four fingers in the air. “Four votes,” he said. “Only four votes.”

  7

  WHAT SHALL BE ORTHODOX

  It wasn’t just the Federalist Society leading the conservative offensive in the Supreme Court during the 1990s. The law professors and their students could come up with theories and write learned articles and op-ed pieces, but the movement needed the legal equivalent of foot soldiers, too—the lawyers who would actually bring and argue the cases before the Court. In law, as in politics, the best troops came from the most passionate and engaged part of the conservative coalition—evangelical Christians.

  Evangelicals joined the fight at the Supreme Court because they, even more than academic critics on the right, were the most outraged by the state of America. While conservative scholars spun theories about the scope of the Commerce Clause, evangelical activists witnessed the actual impact of Supreme Court decisions. In front of abortion clinics. At school board meetings. At high school football games. And the activists were right: the Court had long lined up against their interests. For more than a generation, the justices had engaged in a more-or-less explicit initiative to secularize the Constitution.

  When it came to religion in public life, the framers of the Constitution espoused two potentially contradictory ideas. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For more than a century after the founding of the republic, the courts tolerated a great deal of religion in the public sphere—like prayer and Bible reading in schools, frequent invocations of God and evocations of the Ten Commandments in government buildings (and on currency). At the time, this kind of “free exercise” of religion did not amount to an “establishment” thereof. Indeed, the government was free to require some degree of piety, or patriotism, from its citizens.

  This was especially true in the late 1930s, when public schools around the country insisted that students salute and pledge allegiance to the flag at the beginning of each school day. Many Jehovah’s Witnesses objected to the practice, believing that it violated the commandment “Thou shalt have no other gods before me.” As World War II grew closer, the Witnesses faced a vicious response. Students were expelled from school. Protests were held outside their homes. When they asked the Supreme Court for protection, in the 1940 case of Minersville School District v. Gobitis, they lost. The majority asserted that schools had the right to insist that students participate in rituals designed to “secur[e] effective loyalty to the traditional ideals of democracy.”

  Within months of that decision, though, the Supreme Court, along with the rest of the nation, saw what could happen in a society where loyalty was coerced and nonconformism punished. The chilling example of fascism in Europe reminded Americans, including judges, of the importance of freedom of speech and worship. In this way, the example of Nazism shaped what the American Constitution would become. The transition was fast, too. Just three years after Gobitis, in 1943, the Witnesses brought a nearly identical challenge, and this time they won, in a case that may represent the Supreme Court’s quickest reversal of one of its own precedents.

  Justice Robert H. Jackson’s opinion for the majority in West Virginia Board of Education v. Barnette, one of the most eloquent in the Court’s history, set down principles that would become lodestars of the American creed. “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds,” he wrote, before concluding with one of the most famous passages in the annals of the Court: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

  From this ruling, it was just a short jump for the Court to impose ever-greater limits on mandatory observances of any kind in public settings. The next key moment came in 1962, when the Court banned prayer in public schools, even when children were given the right not to participate. In Engle v. Vitale, Justice Hugo Black employed the same reasoning as Jackson did in prohibiting mandatory salutes of the flag. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” he wrote. A year later, the justices banned mandatory Bible reading in public schools as well.

  The backlash to these rulings was not long in coming. Prayer and Bible reading had been staples of American public education for generations. The court-ordered end to such religious observance in public schools was soon followed by the chaotic late 1960s. The cause-and-effect was debatable, but for many Christians there was a clear connection between the increased secularization of public life and the licentiousness and disorder that followed. In this period, Rev. Billy Graham, in an indirect way, and then Rev. Pat Robertson, in explicit terms, merged their religious messages with a conservative political agenda. In the election of 1980, Rev. Jerry Falwell mobilized what he called the Moral Majority to defeat a Democratic president and a generation of liberal senators. By the time Bill Clinton was elected president, the evangelical movement represented the core of his conservative opposition. The twin pillars of their agenda were clear—one against legalized abortion, the other for public religious expression, especially prayer in schools.

  By the midnineties, after Casey, there was no point in pushing an antiabortion agenda on a Court that had made up its mind on the issue. But the issue of religious expression was wide open. Curiously, although the evangelical movement had amassed enormous political clout, it had not cultivated comparable leadership in the legal arena. But all social movements in America eventually find a strategist who sets their course in the courts—their Thurgood Marshall or Ruth Bader Ginsburg—and this was the moment when the evangelicals discovered theirs. Oddly enough, their savior, Jay Sekulow, turned out to be a nice Jewish boy from Brooklyn.

  Sekulow’s mother went to high school with Ruth Bader Ginsburg, but Jay didn’t just come from a different generation than the new justice—he chose to live in a different world. He was born on June 10, 1956. His family tracked the migration pattern of the country as a whole—city to suburb to Sun Belt, in his case, Brooklyn to Long Island to Atlanta. An indifferent student, unmotivated rather than unintelligent, Sekulow initially
planned only to attend a two-year college and then get a job. But junior college ignited a desire, if not exactly a roaring bonfire, for more education. Too lazy to look elsewhere, Sekulow settled on a college close to his home, Atlanta Baptist College. He worried what his parents, moderately observant Jews, might say about his choice, but his father encouraged him. “Baptist-shmaptist,” the senior Sekulow said. “Go ahead. Get yourself a good education.”

  Sekulow was drifting through the mandatory Bible classes when a friend, whom he regarded at the time as a “Jesus freak,” challenged him to study the Book of Isaiah. Sekulow knew that Jews were supposed to believe that someday the Messiah would come—but that he hadn’t come yet. Still, in reading the passages about the Messiah, Sekulow thought he recognized the description—it was Jesus Christ. Sekulow still considered himself a Jew, but one who believed that Jesus was the savior. In time, Sekulow learned that there were other Jews who shared his belief, and they were called “Jews for Jesus.” At a ceremony in February 1976, Sekulow marched to the front of a Jews for Jesus church service and announced that he had committed his life to Jesus Christ.

  Still, he had to make a living. Sekulow went to law school at Mercer University, in Georgia, found a job with the Internal Revenue Service, and then started a private practice with a friend. His firm set up tax shelters for renovations of historic buildings in Atlanta. Soon Sekulow and his partner were prospering. As Sekulow later related in speeches, he was amazed that clients were paying him retainers of $25,000 or more, and he was just twenty-six years old! “Both my family and my business life were flourishing,” he said. “In addition to the law practice, I began a real estate development firm which grossed over $20 million after the first year.” Sekulow generally omitted what happened next. The deals turned sour. His law firm declared bankruptcy. A new chapter in his life hovered somewhere between a good idea and a necessity.

  Fortunately, about a year earlier, Sekulow had signed on as the general legal counsel for the national Jews for Jesus organization, and it turned out that the group had a case that was heading to the Supreme Court. Sekulow decided to argue it himself and wound up changing American constitutional law.

  Jews for Jesus believes its members should engage in missionary work to seek out converts. Their best-known (or notorious) form of proselytizing consists of aggressive leafleting, especially in public places like airports. In response to this practice, which was frequently annoying to passengers, the governing board of Los Angeles International Airport banned all “First Amendment activities” on its grounds. On July 6, 1984, pursuant to the policy, airport police evicted Alan Howard Snyder, “a minister of the Gospel” in Jews for Jesus, for distributing religious literature. Before Sekulow became involved in the matter, his colleagues in California sued to invalidate the airport rule.

  The original theory of the case was straightforward. Proselytizing was a form of religious activity among Jews for Jesus followers. A blanket ban on the practice thus interfered with their First Amendment right to the “free exercise” of their religion. That was how these cases had customarily been argued. Religious expression was always defended under the Free Exercise Clause.

  But Sekulow’s relative ignorance about the Constitution turned out to be his best weapon. Sure, cases involving religion were always argued under the Free Exercise Clause. But Sekulow came up with a different theory. The First Amendment, after the religion clauses, goes on to say that Congress shall make no law “abridging the freedom of speech.” (In a series of cases after World War I, the Court said that the First Amendment was binding against states and localities as well as Congress.) Sekulow thought the eviction of the Jews for Jesus minister was a speech case, not a religion case. What the airport was doing was censoring free speech—and it didn’t matter whether the speech concerned religion or politics, which was the more familiar basis for free speech claims. What made Sekulow’s idea so appealing was that the Court had been far more generous in extending protection to controversial speech than to intrusive religious activities. Sekulow could draw on a legion of cases where the justices protected all sorts of obnoxious expression, including distributing obscenity, waving picket signs, even, in one famous case, wearing a jacket bearing the words “Fuck the Draft” in the Los Angeles County Courthouse. Sekulow wondered how these activities could be permitted but not the polite distribution of pamphlets.

  So did the justices. At the oral argument on March 3, 1987, Sekulow later recalled in a speech, “I had walked into the courtroom thinking about Jesus and how he overturned the money-changers’ tables at the Temple. Jesus was an activist. He stood up for what he knew was right. I drew strength from his example.” But in front of the justices, Sekulow didn’t even mention religion. He said the case was solely about free speech. Sekulow knew he was on to something when he heard his adversary list all the supposed reasons that the airport banned the Jews for Jesus leafleters. At one point, Thurgood Marshall, who was by then ailing, crotchety, and usually silent on the bench, roused himself and growled, “Can I ask you a question? What is wrong with what these people do?”

  “Nothing is wrong with what they do,” the lawyer said.

  “Well, how can you prohibit something that doesn’t do anything wrong?”

  Marshall had gone to the heart of the matter. For all the airport’s rationalizations, the case was about the censorship of an unpopular group—exactly what the speech clause of the First Amendment was designed to prevent. The vote in Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. was unanimous, with O’Connor writing for the Court that the ordinance violated the First Amendment.

  Sekulow immediately began putting his insight to work for the broader evangelical movement. A group of students at Westside High School in Omaha wanted to start a Christian club, to read the Bible and pray together after class. The principal and local board of education turned the group down, saying that to permit a Christian student group in a public school would amount to an “establishment” of religion, in violation of the First Amendment. Sekulow took the appeal to the Supreme Court.

  Again, Sekulow steered away from the religion arguments under the First Amendment. To him, the case was about the free speech rights of the students. If other youth groups could use the school facilities, why not the Christian kids? Once more, Sekulow won overwhelmingly, with O’Connor again writing the opinion and only Stevens in dissent. More importantly, O’Connor essentially gave Sekulow and his allies a road map for expanding the place of religion in public schools. In the key passage in Board of Education of Westside Community Schools v. Mergens, O’Connor wrote, “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” The Court was saying that religious activity was welcome at public schools, as long as it was students and not teachers or administrators who initiated it. Evangelical students and their parents were only too happy to accept the invitation.

  Sekulow’s victory in the Mergens case in 1990 drew Pat Robertson’s attention. The son of a senator and a graduate of Yale Law School himself, Robertson had established himself as a political, financial, and religious powerhouse. He had started the Christian Broadcasting Network in 1960 and soon found that he needed $7,000 per month to keep it on the air. So he ran a telethon seeking seven hundred people to give $10 apiece, and he called the program The 700 Club. Based in Virginia Beach, the network and its signature program launched Robertson’s vast empire, which included, by the 1980s, broadcast, real estate, cable operations, and even a university, Regent, with more than a thousand students. (Later, he and his partners sold just one part of his operation to ABC for $1.9 billion.) In 1988, Robertson ran a respectable race for the Republican presid
ential nomination, which included besting Vice President George H. W. Bush in the Iowa caucuses, but he had never figured out a reliable way to bring his fight to the courts.

  So in 1990, he asked Sekulow to join him in starting a conservative counterpart to the American Civil Liberties Union. Like the ACLU, the new entity would not limit itself to a single issue—such as abortion or school prayer—but instead represent a complete political agenda. Even the name of the new operation would announce an institutional rival to the ACLU; it was called the American Center for Law and Justice, the ACLJ. (The idea also addressed Sekulow’s personal financial problems, because Robertson put his enormous direct-response fund-raising expertise at the disposal of the ACLJ.) Robertson’s money and clout turned Sekulow from a freelance operative with an interesting idea into a major player in shaping the agenda of the Supreme Court. But he needed cases that would give the justices the opportunity to rule in his favor.

  Sekulow’s mission wasn’t easy, at least at first. For one thing, he didn’t look the part. His New York accent never faded, and his sharp suits, loud ties, and monogrammed shirts suggested a Seventh Avenue garment executive more than an evangelical activist. Once, at a hearing where he was defending Operation Rescue’s antiabortion protesters, clinic workers assumed the fast-talking lawyer represented them. “Wrong table,” he said.