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Not Following the ‘Leader’—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on November 3, 2011.

Not Following the ‘Leader’
By Linda Greenhouse ’78 MSL

Almost everywhere I’ve traveled this fall, people have asked me whether it’s true that Justice Clarence Thomas is the real, if under-appreciated, intellectual leader of the Supreme Court.

Invariably, my questioners have read Jeffrey Toobin’s provocative “Annals of Law” piece in the Aug. 29 New Yorker that made this claim: “In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court.” True, the author referred to an intellectual leader, rather than the, but the article went on to assert that “the implications of Thomas’s leadership for the court, and for the country, are profound.”

Fast forward to Monday of this week, when the Supreme Court ducked yet another case on the constitutionality of the display of religious symbols on public land. This case (actually a pair of petitions appealing the lower court’s judgment) concerned the placement of a dozen 12-foot-high crosses along state highways in Utah to commemorate the deaths of state highway patrol officers in the line of duty.

A private group, the Utah Highway Patrol Association, erected and owns the crosses, each of which carries the name, rank and badge number of an officer along its six-foot-long crossbeam. The state permitted their placement along the public right of way so that they could be seen by passing motorists. A federal appeals court ruled that because the crosses “convey to a reasonable observer that the state of Utah is endorsing Christianity,” their placement amounted to an unconstitutional “establishment” of religion.

The Supreme Court doesn’t explain itself when it turns down a request for review. So the only way to know whether a petition even got the court’s attention before being automatically denied (denial is the court’s default mode, the fate of any petition that at least one justice doesn’t ask to discuss at the justices’ private weekly conference) is when someone publishes a dissent from the denial. In this instance, Justice Thomas published a 19-page dissent from the denial of review in Utah Highway Patrol Association v. American Atheists, Inc.

The dissent was a vivid tour through the incoherent landscape of the court’s Establishment Clause jurisprudence. Here are a few choice morsels, omitting the numerous citations not only to Supreme Court decisions but also to decisions issued by lower courts as they have struggled to understand and apply the Supreme Court’s cases:

“A crèche displayed on government property violates the Establishment Clause, except when it doesn’t.”

“Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t.”

“A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t.”

“Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t.”

“One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes . . . It is our Establishment Clause jurisprudence that invites this type of erratic, selective analysis of the constitutionality of religious imagery on government property.”

All indisputably true, and all making a strong argument for accepting this well-presented appeal and using it as a vehicle for sorting things out. And yet Justice Thomas wrote for himself alone. If he’s leading the court, he’s leading from behind.

The justices took up this case at their first conference of the term, and it had been under active consideration ever since. For all anyone outside the court knows, one or more other justices may also have voted to grant it. It takes four votes to agree to hear a case, and justices who fail to pick up sufficient allies in the private conference often, or perhaps even usually, don’t make their failure public. A public dissent from denial is a strategic choice to identify oneself with an issue and to shine a spotlight on it, inviting future petitioners to knock on the court’s door with similar cases. Both Justice Thomas and Justice Antonin Scalia have used this tactic to good effect, but it’s a game that not every justice feels motivated to play, and that some regard as a bit unseemly, too revealing of the court’s private business.

I had been watching this case since the summer, and I thought the court would find it hard to resist. That was a prediction, not a wish; unlike Justice Thomas, I think the lower court got this one right, and I find the argument for regarding a collection of 12-foot-high crosses along a state’s highways as anything other than an official endorsement of Christian belief to be almost laughably weak.

In fact, not that it matters, but just to be clear, Justice Thomas and I would disagree across the entire range of Establishment Clause cases. He holds a view that is unique among the justices (there’s that leadership thing again), namely that the Establishment Clause applies only to the federal government and not, as the court has maintained since 1947, to the states as well. He also believes that the clause prohibits only “actual legal coercion,” and not the kind of implicit official endorsement of religious practice that makes members of minority faiths, or nonbelievers, feel like outsiders.

The actual target of Justice Thomas’s dissent on Monday was not so much the denial of review in the Utah case as the court’s continued adherence to the approach it has evolved in recent years for discerning a line between the permissible and the forbidden in official recognition of religion. The current “endorsement” test was the creation of Justice Sandra Day O’Connor, who retired nearly six years ago. Justice Thomas is probably correct in his speculation on Monday that this approach no longer commands majority support on the court.

The problem is, neither does anything else. Unless the court accepts either his view that anything goes, which it won’t, or the view advocated by another retired justice, John Paul Stevens, that almost nothing goes, which it also won’t, those determined to claim a corner of the public square in which to display their religious devotion will keep on doing it, and we appear doomed to be ruled in this realm, as in so many others, by the case-by-case exercise of human judgment. A scary thought – perhaps one that scared the justices themselves as, contemplating whether to grant the Utah case, they stood on the brink with Clarence Thomas and decided not to jump.