Bonus: Praying at the 50 Yard Line and Dunking on the Libs
Speaker 1: This Ad free podcast is part of your Slate Plus membership. Hi and welcome to Another Slate plus top secret Amicus Special Edition June Only Podcast. I’m Dahlia Lithwick I cover the courts. You know that. This is Mark Joseph Stern. He also covers the courts. Hi. And hey, Mark. You told me recently on this show, or maybe yesterday, but on a day that Kennedy versus Bremerton was going to be the sleeper case that you were going to be watching, because it wasn’t just a referendum on doctrine. I am now paraphrasing listeners, it was a referendum on truth. And the case just came down six three.
Speaker 1: Coach Kennedy had his First Amendment. Religious liberty. And it turns out his First Amendment speech rights violated by a school policy that did not allow him to pray with masses of students following football games.
Speaker 1: Mark, was this in fact and I know we’re going to talk about Justice Neil Gorsuch as majority opinion, but this feels like a kind of a singular moment because this entire case, and certainly Justice Sotomayor in her dissent uses black and white photos to make this point is a referendum on truth.
Speaker 2: Yeah. And truth fails this referendum. Or perhaps the Supreme Court failed the truth because there are two narratives in this case presented by each side. One is the narrative that Coach Kennedy simply engaged in quiet private prayer at the 50 yard line and students voluntarily joined him. The other is that Coach Kennedy created a spectacle by engaging in loud prayer circles to which he invited not only the members of his own team, but opposing teammates and individuals who attend the school, racing from the bleachers onto the field to join.
Speaker 2: And the Supreme Court simply adopted the first narrative, even though, as the pictures in Sotomayor’s dissent illustrate, it is flatly false. This was not quiet, silent prayer. This was coercive. Loud prayer during the course of school duties by a school official who was hired in part to serve as a leader and role model for students. That conveyed in every possible way the reality that if you did not join in this Christian prayer circle, that you were not a full and true teammate and that you might not even deserve to be playing at the school on that team.
Speaker 1: And and just to go through the facts for a minute, Justice Gorsuch seems willing to accept the narrative that Coach Kennedy was fired, which he was, and he was put on paid administrative leave. He seems willing to accept the narrative, as you said, that this was private and quiet, although there were TV cameras and elected officials and people storming the field and knocking over tuba players in order to join.
Speaker 1: I just really want to kind of emphasize before we get to the massive actually jurisprudential shift, which also happens because, by the way, the court seems to overturn the Lemmon test. But before we get there, I just think it really matters that Justice Gorsuch seems to be willing to say it’s I read this. First of all, it’s as though he’s writing some medieval sort of, you know, tract about like a holy st on a journey, you know, through the desert. And the locusts are like, it’s such a weird read of this holy man who’s just trying to pray. And this dumb school district keeps throwing obstacles in his way that we call accommodations, but apparently are not accommodations. They are violations of his liberty.
Speaker 1: But I just kept thinking about if you know, and then weirdly, he was in a bank and weirdly, the teller was giving him all this money. But weirdly, there’s I mean, it’s such a strange framing of the facts.
Speaker 1: And I guess I just am trying to understand in a deep, deep, deep way what it means when the opinion in a case, a 6 to 3 case about disputed facts I mean, facts that if you read the lower court opinions in this case are just not in question or at least should be in question, except they’re no longer in question, are just batted away as though the only thing that matters is the Fox News telling of this story.
Speaker 2: So Gorsuch evinces an almost divine certainty as though he really is a holy man traveling the countryside of a medieval land back in the 13th century, receiving these visions from a deity, right? These divine truths that must supersede any apparent mortal visions or mere illusions of reality that puny, non divine humans attempt to to put up.
Speaker 2: And so Gorsuch, as he so often does in opinions, reflects an almost pathological certainty in his own rightness, an inability to believe that something he perceives to be true might in. Can’t be true and bulldozes over the facts of this case blows past the photographic evidence to simply present his own account of how this case came to be in capital letters.
Speaker 2: And I completely agree, Dahlia, that this approach not just to judging, but to writing an opinion that is put out in the world and becomes precedent for lower courts to follow is horrifying because it essentially, I think, kind of ratifies the Supreme Court’s stature as a group of gods on Mount Olympus who speak the truth because anything they say must be the truth.
Speaker 2: And in Kennedy v Bremerton, we got this pathology in its purest form, and it certainly does not bode well for the many, many other cases that are highly fact specific that the Supreme Court can just use, I guess, to its own ends, by manipulating the facts to craft a narrative, a siren song of deceit. As a lower court judge put it and got where they want to go when it comes to rewriting the Constitution.
Speaker 1: I just want to read this to you because I don’t know why I’m at that place where improbable things make me laugh, cry. And here’s Justice Gorsuch that says, this is my. And then weirdly, the teller handed me money. Mr. Kennedy was alone when he began to pray. Players from the other team and members of the community joined him before he even finished his prayer. This event spurred media coverage of Mr. Kennedy’s dilemma. Like, it’s like, I don’t know what happened. He just was on his knee at the 50 yard line praying because he kept telling television networks that that’s what he had to do in order to serve God. And weirdly, people prayed with him, including students who felt coerced into praying. And then, weirdly, there was more media coverage. I don’t understand why the teller handed over the money. It makes no sense.
Speaker 1: Okay. Okay, enough with the sarcasm. Mark, this actually has very, very significant consequences. We’re being flip because we’re a little hysterical, but this has real significant consequences. So maybe just tell me. I mean, there’s a whole bunch of cases that are mentioned and sort of flipped off in this case. But maybe start with the lemon test, which is, I guess overruled, although it’s not overruled, it’s kind of just stomped into non-existence. And tell us what the law was and what it is now, if you can discern what it is now, which is I guess I don’t know.
Speaker 2: So I think it’s safe to say that the lemon test is overruled because what Gorsuch does is come in and say, hey, you know, the parties below ask us to apply the lemon test. But what they don’t realize, what only I can see is.
Speaker 1: That it’s already dead.
Speaker 2: It’s already gone. It’s just completely, you know, you didn’t know it and the country didn’t know it. But we actually quietly overruled the lemon test at some stage in the past 20 to 30 years. Not going to pinpoint when, but just trust us. It happened. And so the lemon test is overruled. And then also, he says the offshoots of the lemon test are overruled.
Speaker 2: So let’s talk about what this actually does. The lemon test is a decision from 1971 that lays out this framework for evaluating establishment clause claims. And more recently in the nineties and 2000, the Supreme Court sort of refined it to a standard that I think is actually really clear and quite defensible. And this was sort of Justice Sandra Day O’Connor’s crown jewel of First Amendment law, where she said, look, the question is, does a government action or law give the appearance of endorsing religion? Because the number one principle of the First Amendment is that the government has to be neutral between religions and it has to be neutral between religion and non religion.
Speaker 2: So we can’t have laws that appear to be endorsing religion or any particular faith because that sends a message to the community that there are in groups and outgroups and that insiders who share this religion, the one that is sort of established by these laws, that they get special treatment and everybody else is out in the cold. And that has been the law of the land for many years now. And again, I think it has actually proved pretty durable except at the hands of conservative judges who hate it.
Speaker 2: And so they have zeroed in on this particular test that O’Connor and the other justices used here to ask whether a law was. An endorsement of religion, which was with a reasonable observer taking all the facts into account. See this as the government endorsing religion.
Speaker 2: And here the answer is obvious. Of course, any reasonable observer would look at what Kennedy did over the years when he was holding these prayer circles and say, Duh, this is an endorsement of Christianity. This is an employee of the school in uniform on the job smack dab in the middle of his official duties. He is speaking on behalf of the government and he is expressing Christian prayer and thanks to a Christian God. If that’s not endorsement of religion, I don’t know what is.
Speaker 2: But Gorsuch gets around that problem by saying, Well, you know what? That test is overruled. The reasonable observer test overruled. LEMON in the ash heap of history. We have a new test. And the new test is that did our history and tradition go back, figure out what James Madison would have wanted in public schools today, a concept that would be completely unintelligible to James Madison because that did not exist in 1791. And if James Madison was okay with it, then we’re okay with it. And magically, the majority’s policy preference is aligned perfectly with their imagined idea of what James Madison would have wanted. And so this egregious conduct by Coach Kennedy is not just totally okay under the establishment clause, but it is protected by the free speech and free exercise clauses.
Speaker 1: And Mark, I want to play a little snippet from the oral arguments in Kennedy, because it was something that you pulled on when you wrote about this case, when it was argued and this is Justice Brett Kavanaugh attempting, I think, to pull on exactly the thread that you have just set forth, which is, huh, this seems like it could be kind of coercive and that a coach doesn’t need to say, pray with me or you won’t get to play because he’s an authority figure, a moral leader. He’s been hired to do exactly that. Let’s listen.
Speaker 3: What about the player who thinks, if I don’t participate in this, I won’t start next week? Or the player thinks if I do participate in this, I will start next week and the players, like, wants to start. So that’s that’s where I think.
Speaker 2: Making a clear message that that’s inappropriate.
Speaker 3: That this doesn’t matter for those purposes. That’s that’s how you deal with those problems. And if there is a code, how how are you how you ferret that out? Because every player is trying to get on the good side of the coach and every parent is worried about the coach exercising favoritism in terms of the starting line up, playing time recommendations for colleges, etc..
Speaker 1: So Mark, at the time you wrote HA, this suggests that Justice Kavanaugh understands that this is a subtle problem. It’s not solved with easy tests and that maybe it signals that Kavanaugh understands all of the atmospherics that go into coercion. You were wrong.
Speaker 2: Okay. I just wanted. I just want to call your attention to the fact that at the beginning and end of that piece, I also noted that Kavanaugh likes to fake out observers and use oral arguments as backlash management to present himself as a super reasonable, centrist guy and present a genuinely thoughtful vision of the case that he totally blows past in his final vote and opinion. And that’s what happened here.
Speaker 2: So I guess I was wrong to the extent that I thought it mattered to Kavanaugh even a little, that he understands the dynamic in play here. He reminds us all the time. He’s a coach. He coaches girls basketball. He’s a sports guy. He’s a jock. He understands the dynamic of team sports. And in oral arguments, as we just heard, he really expressed, I thought quite well how this coercive principle plays out on the field. This is something that his predecessor, Justice Anthony Kennedy, also wrote quite eloquently about.
Speaker 2: But that concern just does not appear anywhere in the final opinion, not even a one paragraph concurrence from Kavanaugh explaining how he ultimately landed on Coach Kennedy side, not even bothering to tell us whether there is any limit to this new principle that the court has laid down, which is no rule at all. It’s just Calvin Ball history and tradition. No one knows what that means.
Speaker 2: It takes us right back to the problem with the gun decision in Bruin, with the abortion decision. DOBBS Judges are not historians. This is going to be dilettante ish, amateur hour in the federal judiciary for the rest of our lives, as these completely untrained pseudo historians try to figure out what the founders would have wanted. And I just think I am so over Kavanaugh.
Speaker 2: I don’t think I can ever write another piece about his questions at oral arguments, because even when I add the caveat, the warning that he could be faking us out, it’s so insincere that I feel like I may be doing readers a disservice and making them think better of Kavanaugh than they should to even mention his ability to articulate a thoughtful description of the case and the dispute when he’s just going to land on the far right anyway no matter what.
Speaker 1: And I want to ask you, Mark, because I think you make this point in your piece today about this case that Gorsuch goes so far as telling the students who are not religious, the coerced students, that the burden is on them to be more tolerant.
Speaker 2: Yeah, yeah. Students you don’t like getting coerced into Christian prayer to bad toughen up because you’re going to have to deal with proselytizing in school because that’s what Thomas Jefferson would have wanted. And, you know, just by by complaining to your mommy about this little Christian prayer circle, you’re showing me that you’re not ready to participate in a pluralistic society and you’re not capable of showing the requisite respect for Christianity and Jesus that our Constitution demands of you. So I just think that petulance and a total refusal to empathize with religious minorities, in Gorsuch’s opinion, is so other piece with what Chief Justice John Roberts wrote in his Carson v makan decision last week.
Speaker 2: This is yet another illustration of how the rights of religious minorities, of Jews and Hindus and Muslims and atheists and secular humanists, they don’t matter. It doesn’t matter if suddenly you’re having to subsidize private Christian indoctrination academy. It doesn’t matter if your kids now have to figure out whether they’ll be coerced into private Christian prayer. Your rights don’t matter. It’s the majority Korean religion. That’s the rule. They make the rules and everybody else has to suffer.
Speaker 1: Right. And of course, counterfactual is the Muslim coach bringing his prayer rug to the 50 yard line and imagining all the solicitude, both that the fans would have and the parents would have, and you know that the court would have. I it’s hard to imagine. I want to ask you one question. That is something you flicked at, but I think it’s important. One of the themes that we’ve seen all week last week in this week is the court saying we’re just going to ditch these tests because they’re fundamentally unworkable, they’re inconvenient, they’re clumsy. The lemon test, I mean, we know the courts hated the lemon test forever in Roe. The undue burden test, unworkable, too difficult. The two step test that used to be used for gun regulations. Let’s just use one step. Even the test that’s supposed to be used.
Speaker 1: In overturning a case story decisis. Justice Alito just blew through. That was like Reliance Interest. Who could know? And I guess one of the things I guess I’m saying differently, a version of what you just said, which is if you do away with all the tests, then you’re just at the point where it’s just because I said so. It’s just power.
Speaker 2: Because the fundamental purpose of the tests is to constrain judges and future courts and create a set of ground rules that everybody is playing by. And here I should note, that includes not just judges, but also the thousands of employees of public schools and school districts who have to figure out how to balance the establishment clause to the extent that it still exists with free exercise in free speech, and live in fear of ruinous lawsuits that accused them of anti-Christian persecution.
Speaker 2: The idea of these tests is that everybody’s working from the same playbook, and we can disagree over how that playbook might apply. And one particular instance that we’ve all got the same starting point and this Supreme Court says that’s a bunch of hooey. Like, we don’t need these tests because these tests are just judge made rules that have no basis in the Constitution. And instead everything rides on the subjective determination of five or six Republican appointees who happen to be sitting on the Supreme Court at this moment. And because I don’t think you can really describe the, quote, history and tradition test as anything other than subjective. Given that in Bruin, you have Clarence Thomas and Stephen Breyer looking at the same historical sources and coming to completely different polar opposite conclusions.
Speaker 2: And so I just think there’s an incredible amount of arrogance in decisions like this one, throwing out the lemon test brew and throwing out the two step test dogs, the undue burden test, saying, well, we can do better if we just kind of play it by ear and make up new rules as we go along. I don’t think that can possibly be true. I think what they’re really doing is preserving a maximum amount of leverage for themselves in future cases and for their ideological allies in the lower courts who are going to be the ones to expand these new precedents to their logical extremes.
Speaker 1: And there’s such a through line, right? I think I wrote about this after Kennedy was argued where both Bruin and Kennedy, the. Conservative justices love to talk about pencil pushing bureaucrats and these pencil pushing bureaucrats, in this case the school district killing itself to try to follow, as you say, the strictures of the test and the massive bulk of constitutional and other constraints. And then they get cast both in Bruyn and in Kennedy, as these morons who just are putting red tape in the way of freedom.
Speaker 1: And it’s such just feels like it’s of a piece with so many of the conversations we’ve had around the COVID restrictions, around the CDC, about state health authorities, they’re all just cast as these bungling fools who are getting in the way of freedom. And the antipathy toward the administrative state, the antipathy towards the entire bureaucracy that exists in order to make schools work, is really quite crushing.
Speaker 1: And it leads me to my last question, which is if you look at last week’s Carson decision, that was the school funding case from Maine. And at Kennedy today, it feels like it’s all just of a piece, a big honking attack on public education.
Speaker 2: Yeah. Yes. And just to your list of cases crapping on bureaucrats, I would add Carson itself, where during oral arguments, Justice Gorsuch complained about bureaucrats in Bangor deciding which schools are too religious to get funding. He he has the state capital wrong. It’s actually Augusta, but we’ll leave that aside.
Speaker 2: Yeah, this is a fundamental loathing of the people who make government work. And I draw a real connection between those people and the folks who testified at a recent January six committee hearing who are in the bowels of the election system, having to do the hard labor of tallying these votes and shuttling around ballots, and they get nothing but slack and grief and become the target of conspiracy theories. And these people are the everyday heroes who actually apply and enforce our laws and in their case, elections and in these cases, public education and make sure that the money is going where it’s supposed to, that the system is working as intended, and the Supreme Court hates them.
Speaker 2: Donald Trump hates them, the Republican Party hates them. They are perceived as the enemies. It’s like Donald Trump didn’t successfully purge the, quote, deep state from the federal government, but his whole deep state ideology is winning right now because you have six Knights of a Supreme Court convinced that bureaucrats are the ones sabotaging the Constitution in the name of a Wilsonian system of bureaucratic government. Because these people, they hate Woodrow Wilson. Right? We could spend hours on their obsession with Woodrow Wilson who made everything go wrong. Dahlia, what was your question? I honestly don’t remember.
Speaker 1: I think that was it that. Yeah, you answered it and I. I would just connect. Seamus and Ruby Freeman. Yes. The people who testified last week about what it is to be delivering absentee ballots to hospitals, because that’s what these boring pencil pushing bureaucrats do. They’re freaking heroes. And I would connect that and the unbelievable mass of death threats and violence and doxing and savagery that they experienced to what the school district received. Yes. Once this was publicized, once this was made plain that this was the school district cruelly quelling the religious freedom of Coach Kennedy. That’s who got harassed and threatened.
Speaker 2: Oh, yeah. And it’s all in the record in this case, of course, the majority just ignored it. But as soon as Coach Kennedy turned himself into a cause celeb, as soon as he started posting on the Internet about how he was facing anti-Christian persecution, that the rage, the death threats, the hateful e-mails started flowing in to these people who work for the school district. Do you think that that is a rewarding and entertaining job to be working for a school district and sifting through an inbox filled with death threats because you tried to enforce the establishment clause. It’s the most thankless task possible.
Speaker 2: And now the Supreme Court is sort of rewarding that framing of the case that Kennedy and his lawyers created with the help of some very gullible and naive media. And the whole thing is frankly sickening to me. And I think the natural reaction is that the people who currently fill these positions are not going to want them. They’re going to say, To hell with this. Why would I want to make myself the punching bag for a bunch of conspiracy theorists and grievance mongers who are convinced that I’m the enemy because I’m the deep state.
Speaker 1: And because I just did my job.
Speaker 1: What’s next, Mark? What is how does this term crawl to an end? We get decisions on Wednesday.
Speaker 2: We’ve got decisions on Wednesday. We’ve got some outstanding cases, specifically West Virginia versus EPA, in which the Supreme Court may dismember the Clean Air Act and prevent the Biden administration from regulating carbon emissions at coal power plants.
Speaker 1: In the state.
Speaker 2: Yeah.
Speaker 1: Big state bureaucrats, useless regulatory agencies, supra.
Speaker 2: And then we’ve got the Remain in Mexico case where the court will decide whether the Biden administration is obligated to maintain and perpetuate Trump’s cruel and inhumane policy, forcing migrants and asylum seekers to stay in these violent and dangerous tent cities in Mexico while they’re awaiting their hearings.
Speaker 1: Good times. Good times. Mark Joseph Stern. You are. My True North. Thank you so much for being with us. We’ll talk again toward the end of the week as the term wraps. Are we? Wednesday is not for sure the last day.
Speaker 2: We don’t know. We don’t know because they.
Speaker 1: Haven’t told.
Speaker 2: Us. I think it won’t be. Actually, I think that it will be extended to Friday, but we’ll just have to wait and see.
Speaker 1: Mark Joseph Stern I’m going in my Captain Kirk voice now for unknowable reasons. Mark Joseph Stern covers the Supreme Court for Slate. Thanks, Mark.
Speaker 2: Thanks to all you.
Speaker 1: That is a wrap for this bonus episode of Amicus for our Slate Plus members. Thank you so much for listening, Kim, and thank you for supporting our show and the work we do at Slate. And thank you so much for your letters and your questions. You can keep in touch at Amicus at Slate.com. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We will be back with another episode of Amicus later this week, likely Saturday. Until then, take good care. Thank you for listening.
