The First Was Not Always the First (concluded)

          The congressional framers of our Bill of Rights did not place our First Amendment rights first. And there is nothing to indicate that the states somehow concluded that the Third Amendment, as it came to them, should be changed to the First Amendment. It is a mere fortuity (see previous blog) that the protections in our First Amendment come first in the supplements to the main body of the Constitution, and no importance should be accorded its placement. The notion that our country’s founders regarded First Amendment protections as the most important because they placed them first in the Bill of Rights is revisionist–dare we say fake–history?

          However, First Amendment rights, or at least most of them, are essential for a free society. Nations do not need all of what is in our Constitution, but it is hard to imagine a country we would consider free that did not have free speech and a free press. We may not think about the ability to assemble as much as speech and press, but people need to be able to come together for many reasons: comradeship, grieving, exchanging ideas, protestation, worship, laughter, dinner, and much, much more. Without a right to assemble peaceably, a society would not be free. And a society is not free if governmental communication only goes one way, from the government to the people. In a free society, the government is the instrument of those it governs. Freedom requires citizens and others to be able to tell the government of perceived problems and need of improvements. Whether we label this the right to petition the government or something else, it is essential.

          But when Education Secretary DeVos and Attorney General Gonzalez were referring to the primacy of the First Amendment (see Monday’s post), they were not drawing attention to speech, press, assembly, and petition rights. Instead, they were stressing the importance of the Free Exercise of religion clause.

          We take the basic right of freely exercising religion for granted. You can go to your chosen house of worship; read the Bible in any of the multitude of versions of it or the Koran or even Dianetics; pray together with others in your home or elsewhere; watch sermons on TV; give money to religious missions; solicit money for religious purposes; and so on.

Nevertheless, there are those who claim that the free exercise of religion is under attack. However, they don’t mean that our right to worship whatever Being we want in the fashion we choose is not secure. Instead, they mean that the free exercise of religion is under attack because they want their behavior to be exempted on religious grounds from the duties placed on the rest of society. For example, even though the law says businesses may not refuse to serve someone because of race, sex, or sexual orientation, a person claims that because serving a gay person violates his religious belief, he should be exempted from the law. An employer maintains that contraception violates his religious beliefs, and therefore although the law mandates that he provide health insurance that covers the costs of contraception, he feels he does not have to. The claim is not that the government has prevented people from being allowed to attend the church they want or study the text they hold sacred or pray in the form they desire. It is the assertion that because of their religious beliefs, they must be allowed to behave differently in society and ignore the laws that the rest of us must obey.

          The advocates for these kinds of free exercise claims seldom mention the First Amendment’s other religion clause, the one that bars the establishment of religion and comes first in the Bill of Rights.

          The founders knew that free societies and representative democracies could have an established religion. At the time the Bill of Rights was proposed by Congress, several states, including those ratifying the First Amendment, had established churches. These establishments were not regarded as inconsistent with a free, representative government. The Constitution’s Section 4 of Article 4 commands, “The United States shall guarantee to every State in this Union a Republican Form of Government. . . .” If established churches were detrimental to that form of government, Congress would have had the duty to disestablish the state churches. They, instead, did not interfere with the established churches. (Even today countries that seem to have at least as much liberty as ours have established churches, including Denmark, Iceland, Scotland, and England.)

          The Establishment Clause is striking because it has a purpose that is different from the rest of the First Amendment, but also because of its broad language. Picking a church to be established nationally would have been divisive—state-aided churches in the south were Anglican and in New England were Congregational—but the Bill of Rights does not just prevent an established church. It bars any establishment of religion, and it does not just prohibit a formal establishment of religion, it goes much further and says there shall be “no law respecting” such an establishment. The founders did not just want to prevent an established church or the establishment of religion; their language indicates that the United States should not even be on a road that could possibly lead to such an establishment. (This divorce from religion was also evident in Article VI of the Constitution, which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Some states did have religious requirements for office-holding that lasted into the nineteenth century. New Hampshire, for example, required state officials to “be of the Protestant religion.”) Therefore, all interpretations of free exercise must consider whether a law respecting the establishment of religion is being made.

          The original notion of the free exercise right—I can worship as I choose–produces no tension or conflict with the Establishment clause. I can join the congregation of my faith; read my desired sacred texts; fill the collection plate of my selected church; label my god by my preferred title; worship more than one god; insist that women should be segregated from men during a service; maintain that divorce, homosexuality, contraception, and looking at the behinds of the opposite sex are sins. None of this raises an issue of the government moving towards the establishment of religion.

          However, the modern claim of free exercise that says a law cannot force a person to behave contrary to religious principles is different. If a person is exempt from following the law others must obey because of religious beliefs, then that person is put in a favored spot over the non-religious or those with a different religion. Does creating this privileged position based on religion violate the injunction that there can be no law respecting the establishment of religion?

          If your answer is no, consider this possibility: Assume a law requires employers to provide insurance to employees when ten people are employed. Assume that Sam, the owner, believes in something akin to Christian Science and that healing comes only through prayers without medical intervention. He maintains that it would violate his free exercise of religion to provide the legally mandated health insurance. Of course, if he is exempted from that general law, not only do his employees not get the coverage, Sam gets a financial advantage over other businesses, and perhaps competitors might think about joining Sam’s church.

          I am not pretending that I know how those claims should be decided, but in examining them, we should realize that many of the free exercise claims bring a tension with the Establishment Clause.

The First Was Not Always the First

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment to the Constitution of the United States of America.

          Within the next two months, the Supreme Court term will end. The Court will render all its decisions for the pending cases. The most anticipated, of course, concerns abortion, but many other important opinions will be handed down, including some about religion.

          The religious cases will not get as much publicity as the abortion decision, but they will shape the country’s future in important ways. Before they come, I thought I would revisit the First Amendment, which contains what are often called the Establishment and Free Exercise clauses. A popular misconception is that the rights in the First Amendment were considered the most important ones by our founders because they come first in the Bill of Rights.

          For example, Trump’s Secretary of Education Betsy DeVos said in an op-ed piece: “There’s a reason why the First Amendment comes first. Our country was founded upon the ‘first freedoms’ it protects. The freedom to express ourselves — through speech, through the press, through assembly, through petition and through faith—defines what it means to be American.”        

          Her statement seems to say something learned about our country, and surely First Amendment rights are important, but can her words be profound when they misapprehend and misrepresent history? DeVos says the collection of First Amendment rights “defines what it means to be an American.” DeVos should remember the old story in which the teacher asked, “Who was the first man?” Glen shouted out, “George Washington.” Miss Wilson responded, “What about Adam?” Glen, showing disappointment in his teacher, said, “Well, if you are going to count foreigners.

          America is not alone in what we label First Amendment rights. Citizens of many countries have the right to express themselves. If that right defines what it means to be an American, many foreigners must then be American.

          Perhaps what DeVos really meant to say is that we would not be Americans without these guarantees, but they do not define what it means to be an American. Happily, we are not the only people in this world with such rights. (The Democracy Index has scores for civil liberties and about twenty countries are ranked higher than the U.S.)

          DeVos made another point. These are our most important rights, she says, because the “First Amendment comes first.” Alberto Gonzalez, Attorney General for George W. Bush, said something similar years earlier, stating that religious freedom is the country’s first freedom because our founders saw fit to place it first in the Bill of Rights. We should give primacy to First Amendment rights because they come first, he said, and following that logic, we should give primacy to the religious provisions because they are the first of the First Amendment. (The First Liberty Institute, which litigates religious cases, does not on its website explain its name, but I presume the name comes from similar reasoning.) It all seems so obvious that a third grader using vouchers could follow the reasoning. But this elementary school reasoning is misleading and historically inaccurate.

          The rights of the First Amendment don’t come first in the Constitution. They come after the seven articles of the Constitution that were drafted in 1787; the initial amendments were drafted in 1789 and went into effect in December 1791. Our Constitution granted rights before the Bill of Rights existed, and if rights are to be measured by their placement, then these original freedoms coming years before the First Amendment must be more important than the religious and speech provisions.

          For example, Section 9 of Article I of the Constitution prohibits the suspension of habeas corpus except when a rebellion or invasion may require it. The next paragraph prohibits a bill of attainder or an ex post facto law. The next Section 9 provision gives another right: No direct taxation unless it is based on the census. This was an important right until it wasn’t a right. The Sixteenth Amendment, ratified in 1913, wiped out the no-direct-taxation provision by explicitly authorizing an income tax. Our rights, it turns out, are not immutable.

          Section 9 contains two other provisions that we seldom think about but were truly essential foundational rights for this nation, because without them we would not be one country: “No Tax or Duty shall be laid on Articles exported from any State. No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one state, be obliged to enter, clear, or pay Duties in another.” We are welded into one entity because goods and transport can freely travel among the states. Without that, we would only be a collection of fifty fiefdoms.

          The founders also placed important rights in Article III, which provides a narrow definition of treason and requires “the Testimony of two Witnesses to the same overt Act, or on Confession in open court.” It also eliminated punishments for treason that had existed in Europe. Finally, Article III, Section 2 guarantees jury trials for crimes. (If the importance of a right is measured not by its placement in the Constitution, but by the frequency of its protection, then juries are the most important constitutional right since juries are guaranteed not only in Article III but also in the Fifth, Sixth, and Seventh Amendments.) In other words, First Amendment rights should not be given primacy because they come first; they don’t.

While the First Amendment’s placement does not indicate the preeminence of its protections, its rights are foundational to what we would consider a “free” society. That is not true for much of what is in the rest of the Bill of Rights. Many of its provisions are America-specific. We have them, but other countries have not considered them necessary for freedom. Most nations do not have the constitutional equivalent of our Third Amendment, which restricts the quartering of soldiers in homes. Many free societies have justice systems that do not rely on juries as we do. Most countries do not have in their constitutions the right to keep and bear arms. Indeed, our overall structure of government mandated by the Constitution with a President selected by an electoral college, a Congress, and separation of powers has not been deemed necessary for many free societies.

(To be continued)

High-Priced Gas

          People are complaining about gasoline prices. This has a note of irony since many are willing to pay more per gallon of bottled water than they do for gas. Water has regularly cost more than gas even though it is only a miniscule percentage of us who can’t just open a kitchen tap and get safe water.

          High-cost gasoline, however, has widespread economic effects, and it has a political impact that high-priced water does not. The president must at least look as if he is trying to tame the cost of gasoline even though we know that he can do very little in the short run to affect gas prices. Governors have suspended state gas taxes–modest help to the driving public. In a Catch-22 situation, suspending gas taxes limits income needed for road construction and maintenance. Voters, who may grumble about the rising price of gas, speak regularly about the substandard state of the roads.

          These politically understandable actions, however, do not address the more important issue: gasoline-powered cars cause pollution, which harms health and contributes to the death of many. Data show that gasoline-powered cars are a major part of the problem of climate change. We should be using less gasoline, but, once again, the present crisis indicates that we are not about to give up our combustion engines.

          People need cars to get to work, schools, and the grocery store. We have built a country that depends on private vehicles, and it is hard to see the path to a lesser dependence on them. Consciously or not, inexpensive gasoline has helped shape our work, housing, schooling, and recreational choices, and climate change and pollution have been the result.

          We have seen a move to electric and hybrid vehicles, and that is a good thing. Newer cars need less gas than cars made a generation ago, and there is renewed talk that car companies should increase the gas mileage for their fleets. Still, even among my friends who hug trees and clean streams, many of us drive bigger vehicles with lower gas mileage than we need. We are reluctant to give up big cars and trucks. It’s our God-given right, a right encouraged by cheap gas.

          Higher gas prices could be an impetus to lower our dependence on oil. Even so and even though our president and other sensible leaders believe we should act on climate change, politicians know that expensive gas can kill a political career. The governmental responses have been especially discouraging because they have not been targeted to help those most who are truly harmed by the pump prices—the non-wealthy working people with families who, in our present societal structure, must use their cars extensively.

          For many of us, our cars and how much we drive them are luxuries. Higher gas prices should be an incentive for us to burn less gas. And, of course, that would mean that oil companies had reduced profits. Many politicians will avoid that hard fight. After all, oil companies give big money to campaigns. It’s easier to blame the opposing party for high prices.

          The present situation is another reminder that the road to a better climate is hard and filled with potholes. Perhaps we should just give up the notion that we can stop the atmospheric devastation and figure out how to adapt to the inevitable.

Fly Me to the Moon the Easy Way

          President John F. Kennedy’s soaring oratory had memorable lines, but some did not make much sense. For example, in his inauguration he famously said, “And so, my fellow Americans: ask not what your country can do for you—ask what you can do for your country.” I immediately wondered whether that was right. In suggesting that it was a one-way street from me to the government, Kennedy sounded like an authoritarian. I could have imagined Stalin saying something similar, that a good citizen first must serve the government. I had memorized Lincoln’s Gettysburg Address, and I remember his phrase that our government was “of the people, by the people, and for the people.” I like Lincoln’s vision better. We are the government—“of the people.” We need to work to govern ourselves—“by the people.” And one purpose of government is to serve us—“for the people.”

          Thirty months later, JFK made his let’s-go-to-the-moon speech, which was filled with nonsense, bombast, and a questionable metaphor. In explaining why we should commit to having men land on the moon and return, he said, “Because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we’re willing to accept. One we are unwilling to postpone.” It sounds inspirational unless you try to parse and understand it. He continued, “And therefore, as we set sail, we ask God’s blessing on the most hazardous and dangerous and greatest adventure that man has ever gone on.” Set sail in a rocket ship? And if it weren’t hazardous, it would not have been dangerous, but were the superlatives even close to being right? What about those people who crossed the land bridge from Asia to the Americas? Or Christopher Columbus or Magellan, who actually did sail? Or those who followed Moses in flight from Egypt or Genghis Khan or took part in the Crusades?

          But perhaps what is most remembered from the speech was this: “We choose to go to the moon in this decade…not because they are easy, but because they are hard.” Even as a teenager besotted with Kennedy, I could not help thinking how silly this was. Many things are hard—pounding nails with my forehead, for example. I would not choose to do them because they are hard, and I could not believe that a government should ever do something simply because it was hard. We might pledge to accomplish something that was the right or valuable thing to do even though it was difficult but never simply because it was not easy. Although I only learned of it later, I was adopting the aphorism of Thomas Aquinas: “Not everything that is more difficult is more meritorious.”

          People have sometimes told me to take the hard road as the right choice even when an easier one is available. Sometimes they are right, but I decided that unless I could see some great harm in it, I would first try the easier choice and find whether it suffices. Several examples from my life will demonstrate.

          Baby bottles, for example. As a new parent, I had heard all the advice about gently warming it and testing it on the wrist and so forth. I started out doing that, of course also trying to obey the stricture of not heating up the formula too much. But one day I said to myself, Let’s see what happens if I don’t warm it. Baby-caring gurus had indicated that the baby would not drink it, or worse would launch into a tantrum that would be hard to soothe. I filled a bottle with the refrigerated liquid and gave it straight to the kid who sucked it up with sounds only of contentment. Maybe it’s different for different babies, but this one did not need or even seem to want the bottle to be warmed. This was not the most important discovery of my life, but when the baby is crying in need of a bottle, it can seem a very, very long time warming it up. It was much easier on the nerves to deliver it almost instantly. The easier road worked just fine.

          I have houseplants. I am not much of a gardener. Most of the houseplants are travelers. During the summer, they are outside. I have a reasonable amount of light in my Brooklyn apartment, so I take the plants into it the winter, but I do little beyond watering and sometimes rotating them. I don’t do the pruning, for example, that I am told is necessary. Perhaps they would look somewhat better under someone else’s care, but they survive just fine. When I first started wintering the plants, I did not have enough “good” places for them. I put them on a shelf under a cold window. I was told I could not do that and have the plants survive. Worse, I put plants—six or seven of them—on top of radiators. You can’t do that, I was adamantly told. The alternative was to buy or construct plant stands. If that is necessary, I thought, I will do it but first let me see whether that effort is necessary. The plants have thrived in those locations others commanded not to use. The easy route worked just fine.

          I make bread. I have a sourdough starter. Sourdough starter, I have been told, must be cared for frequently and diligently. Once a week, it must be fed, that is, flour and water added, and half the starter thrown away. I have seen on a cooking or travel show a sourdough cult in Scandinavia where “sourdough hotels” exist. These are something like a kennel for pets; they will take care of a sourdough starter while a Swede goes off to Madeira or the Riviera for a few weeks. Taking care of the starter is not a big deal, but it does require that I pay attention to it, and I don’t put the task onto a calendar. Instead, I again have decided to try the easier route first. If I kill the starter, big deal. I will just get the bacteria or whatever it is going again. It’s not hard to do. My starter goes weeks, sometimes even months, without attendance, and the present strain has been alive and increasing in strength for over a decade. I am quite happy with my laziness.

          I am not trying to suggest that easy route always works. Last year for the first time I left a car parked outside for the winter. One friend told me that I should disconnect the battery for this storage. Another friend said that he often left his vehicle during the winter and it started just fine in the spring. Disconnecting the batter is not a big task. I have done it before and at worst have only banged a few knuckles, but I chose the easier route. It’s spring, so I recently tried for the first time to start the car. It didn’t start, and I will have to get the battery charged. Next year, I will disconnect the battery when I leave the car for the winter. Sometimes the easy route is not the right path.

          This discouraging result, however, will not get me to change my pattern. I will try the easy route first without automatically adopting the harder path suggested by others.

From the Back Pew on Easter


Yesterday was Easter, and perhaps as it should, that got me thinking not just about eggs and bonnets, but about Christianity. 

The resurrection of Jesus is at the core of Christianity. For most Christians their religion would not exist without the concept of life after death. It is important that this particular death, the death of Jesus, did not come from “natural” causes, from cancer or a heart attack or a liver disease or from what sometimes is labeled an Act of God–an earthquake or a flood or a tornado. It seems essential that the resurrection, the new life, came after a death caused by man. It was brought about not by an individual; it was not merely a murder or an accident. It was a death exacted by society. It was, in fact, an execution. If the resurrection is at the core of Christianity, at the core of the drama is also a state-enforced death penalty. Is there meaning in the fact that Christianity flows from capital punishment? As far as I am aware, the role of the death penalty in the Easter story is under-played. On the other hand, the method of carrying out the execution, the crucifixion, which by definition required a cross, has a central role in the symbols of the religion.

Although not all denominations fetishize the stations of the cross, nearly all Christians have an image of a beaten, yet still heroic Jesus struggling to carry the cross to Calvary. And every follower of Christ has looked in wonder at representations of Him on the cross, which, whoever the artist, are strikingly similar. He no longer can keep his head erect; it slumps to the side. He bears a crown of thrones and a wound in His rib cage. Stripped of all but a loin cloth (where did that come from?), He is dead or nearly so, but still powerful with a muscular torso and manly shoulders. Even in death, He is majestic.

Sermons and hymns almost rhapsodize over the agonies of the cross. Nails pounded through flesh, muscle, and bone into the wood. Hanging by the outstretched arms until death (mercifully) came. And this suffering, we are told, was for us, for our redemption, because of our sinfulness, so that we can have everlasting life.

As a boy, I felt that if this suffering were for me and my salvation, Jesus’ agonies had to be unique. How else could His crucifixion work this wondrous change in the future of mankind if that pain and torture were commonplace?  Of course, I knew that two others had been crucified with Him and must have suffered similarly, but these deaths were merely an accompaniment to Jesus’ crucifixion. It was confusing, then, when I learned that this mode of execution was not unusual and saw depictions of legions of men nailed to crosses. Many others, I realized, encountered a physical pain that had to be identical to that which Jesus encountered. If the agony of Jesus was supposed to mean something to me, did the agony of these countless others have special meaning, too?

Although I do not (fully) understand the ecclesiastical reasons for it, Jesus had to be executed for His resurrection to lead to the belief in Jesus’ redemptive power. The crucifixion, however, was not unique to Jesus and many suffered it; therefore, His death did not have to occur on a cross. But would it matter to Christian belief if a different form of capital punishment had been used? Perhaps it is important that the form was slow and agonizing so that we can grasp His pain and sacrifice, but Jesus apparently died a relatively quick death for a crucifixion, as indicated by the centurions’ surprise that He was no longer still alive. But if prolonged agony was important, even a quick form of execution like beheading or a less gruesome form like poisoning could have been preceded by lengthy flagellation and mutilations. And, of course, other horrific execution methods were also used then, such as stoning, impalement, starving, crushing under rocks, burying alive. My question: What if crucifixion had not been used, but a different form of execution was? Certainly powerful symbols of Christianity would be different. Would that make any difference to Christianity itself? Is belief actually influenced by iconography, and if so, how?


The news reported about a scientific study, contradicting other studies, that concluded that when genes are taken into consideration, the moderate consumption of alcohol has no cardiac benefits. I, being a good, modern American, did not try to understand the news report but, instead, simply ignored it as I picked up my glass of Single Barrel Bulleit.

At my age, if I sit for thirty-five minutes, only one part of my body doesn’t stiffen.

With the cognitive and physical limitations of my age, I am only good for twenty minutes straight at anything. I can’t tell you how much the spouse laughed when I said that.

Sarah Palin had not run for an elective office in more than a decade, but she has now announced as a candidate in an Alaskan election. Does that mean that she finally learned that her family did not want to spend more time with her?

He announced as he entered the car words familiar to all New York City subway riders: “Ladies and gentlemen, I am sorry to bother you.” He did not tell us he was going to perform or sell candy. His pitch was simple: “I am trying to get enough money to go to New Jersey to attend my ex-wife’s funeral.” I wanted to ask, “You want to make sure that she is truly demised?”

“We often forgive those who bore us, but we cannot forgive those who find us boring.” La Rochefoucauld.

I recently learned that I have played Rochambeau (or roshambo or ro-sham-bo). You have probably played rock paper scissors, too.

The Newsmax host discussed the recent Brooklyn subway shooting and labeled New York City a third-world country. This was strange. The network broadcasts from Manhattan. The host then went on to mock a billboard he said was put up by NYC Mayor Eric Adams that contrasted New York and Florida by saying a person can use “gay” up north. The Newsmax guy then said, “That’s not true. You can say ‘gay’ in Florida and you won’t get shot on a subway in Florida.” Duh! Is there a subway in Florida? Perhaps he was counting the monorail at the Orlando airport. His statement, however, sent me to the internet for homicide rates. New York City had 485 murders in 2021, up from 468 the previous year. This was a rate of 5.5 murders per 100,000 population. The Florida homicide rate was slightly higher than New York City’s. Yes, slightly higher with over 1,500 murders for a rate of 5.9 per 100,000. In addition, more than 3,600 people died in traffic accidents in Florida in 2021. It is the third most dangerous driving state in the country. In 2021, 274 people died in NYC from traffic fatalities. The Florida traffic death rate per capita is about six times higher than New York City’s. You don’t lessen the chances of suffering a violent death by moving from New York City to Florida. You increase them. And, while extolling Florida, the Newsmax person failed to mention Parkland (seventeen murdered) or the Pulse nightclub in Orlando (forty-nine killed).

Eliza Reid, Secrets of the Sprakkar: Iceland’s Extraordinary Women and How They Are Changing the World wrote that Icelanders have a saying about the importance of knowledge: “Blind is the bookless man.”

The Judge Ain’t No Umpire

          Americans believe that Supreme Court justices are biased and rule in line with their personal ideologies and preferences. There are many reasons for these conclusions. When justices such as Amy Coney Barrett tell us how unsullied they are, as she did recently, instead of just going about their judicial work, we can’t help but think about Gertrude and doth protesting too much methinks. But the American skepticism has other roots. Consider the present Chief Justice.

          John Roberts in his confirmation hearings described the job in baseball terms: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

          Roberts has been mocked for this statement, which revealed ignorance or disingenuousness, and since Roberts is smart, the latter is inferred. The Constitution contains numerous phrases that need interpretation, such as “direct taxes,” “the executive power,” “privileges and immunities of citizens,” “the due process of law,” and many others. Deciding cases involving such language is not the same as determining whether a batted ball is fair. Suggesting an equivalency between the umpire and the justice was an attempt to mask the inevitable values and policies that are involved in judging. While umpires do not make up the rules as the game progresses, Supreme Court justices in essence do. Issues are before the Supreme Court because they have not been decided before. If in deciding a case the Court must determine what is interstate commerce or what infringes the free exercise of religion, it is setting down that rule for the first time. It is making up the rules as it goes along.*

          The choices justices make are not inevitable. Legal scholar Sanford Levinson was correct in saying, “There are as many plausible readings of the United States Constitution as there are versions of Hamlet, even though each interpreter, like each director, might genuinely believe that he or she has stumbled onto the one best answer to the conundrums of the texts.” Thus, an interpretation will never be entirely objective. Justice Benjamin Cardozo: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thoughts and actions. Judges cannot escape that current any more than other mortals. Every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.” Justice Louis D. Brandeis made the same point: “I believe that our judges are as honest as you can make them. But like all of the rest of us they are subject to their environment.”

          Judges are not gods. They cannot be purely objective, and like the rest of us, they cannot know everything that influences a decision. Cardozo again: “All their [judges’] lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions.” It is arrogance, chutzpah, or naïveté to proclaim objectivity for yourself and others as Barrett did, and the justice who unquestioningly believes in or promotes such objectivity is fooling herself. Justice Oliver Wendell Holmes, Jr., said, “It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seems to him to be first principles are believed by half of his fellow men to be wrong.”

          Justices without awareness of the limitations of their objectivity who do not practice what should be the accompanying humility are dangerous because the justices not only make up the rules, they make up the final ones. As Chief Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Or as the more acerbic H.L. Mencken defined: “Judge—A law student who marks his own examination papers.”

          We should be leery—no scared—when a judge pretends his job is no different from being a baseball umpire or when another proclaims, “No judge is deciding a case in order to impose a policy result.” The first is blatantly wrong; the second attempts to obscure the fact that policy choices affect us all, including—gasp—the Supreme Court. If I may borrow a term I heard frequently in law offices, the courts, and the playing fields, “Don’t give me bullshit.” On that we should all agree.


*         Roberts analogy was also wrong from baseball’s perspective and shows that he does not understand that endeavor either. Every fan knows that the strike zone varies in size and location depending on who is behind home plate. Some umpires have a wide zone and some a high one and so on. Perhaps whether the tennis ball landed within the service box would have been a better comparison for Roberts. Of course, now such calls are often automated and don’t require a human. I am quite confident, however, that no Supreme Court justice believes that he or she should be replaced by a machine.

ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad ( But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.

To Recuse or Not to Recuse? Let’s Make the Question Easier (concluded)

If the president could nominate a new person to the Supreme Court every two years, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, which has many positive benefits, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Judges on reserve would be available whenever one of the regular nine was unavailable for reasons such as illness or was recused by a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for thirty years and Stephen Breyer for twenty-seven. Chief Justice Roberts and Samuel Alito have been on the Court for sixteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight, and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee, and a bigger pool of possibilities should lead to better justices.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.*

The kind of partisan games we have witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end, maneuvers that strengthened the notion that the Court is not a neutral body. Similarly, the present situation calling for the resignation of a justice as recently happened with Stephen Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it guaranteed Biden any appointments in the next four years. Instead, it should start after the next presidential election with the newly elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?


*We have seen that when they control the Senate, Republicans are willing to refuse to consider a Supreme Court nominee put forth by a Democratic president. This tactic could be prevented by requiring that the Senate vote on a Supreme Court nominee within ninety days after the nomination and that failure to act will be automatic approval of the appointment. If the nominee is voted down within ninety days, the Senate shall vote on that new nomination within ninety days and again, no action equals approval. With the third nomination, again the Senate must act within ninety days but then the nominee is approved if forty Senators vote in favor or if forty percent of those voting are in favor. The cries may go that this is not approval within the meaning the Constitution, but that document does not define “approval,” and the Senate has required that nominees survive a filibuster. If the Senate can say that fifty-nine Senators is not enough for approval, why can’t the Senate say that forty is sufficient?

To Recuse or Not to Recuse? Let’s Make the Question Easier

Messages from Ginni Thomas to Trump administration officials indicate she believes that the last election was stolen from the former president. This has brought calls that her husband Clarence Thomas recuse himself from any Supreme Court case that might involve that 2020 election.

I leave the merits of whether his recusal is appropriate to others or for another day. Instead, I have been struck by some of the commentary that says that Justice Thomas should refuse to recuse and refers to the well-known opinion (in certain nerd circles) when Antonin Scalia refused to recuse himself.

In that case, Vice-President Dick Cheney was a named party, and an opposing party moved that Scalia recuse himself because Cheney and Scalia for years had gone on a hunting vacation together. Before launching into the twenty pages defending his non-recusal decision, Scalia pointed out that the motion suggested that Scalia “resolve any doubts in favor of recusal.” Scalia responded: “That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

Of course, Scalia was right that a recusal on a lower court is different from one on the Supreme Court. Throughout the country, we generally have three levels of courts. The lowest is often called a trial court where a legal matter originates. The proceedings are presided over by a single judge, but there are other trial judges in the jurisdiction. If a judge steps aside, another trial judge gets the matter, and the legal matter proceeds in the same fashion as if there had been no recusal.

An intermediate appellate court sitting above the trial courts decides cases with panels of judges—three in the federal Courts of Appeals. These appeals courts, however, retain more than three judges. The panel to decide a case is drawn from the greater number. For example, the federal Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. As Scalia indicated, if a judge assigned to a case is recused, then another appellate court judge steps in and the same sized panel still decides the case.

The Supreme Court is different. Nine justices decide a case and the Supreme Court has only nine justices. If a justice steps aside, the matter will be decided by the remaining justices, or if the justices split evenly, no decision is rendered. (A tie vote means the intermediate appellate court decision stands.) Scalia used the possibility of a four-four split as a justification to stay on the case, and it is now also cited as a reason why Clarence Thomas should not recuse himself.

While lower court judges may be expected to err on the side of recusal and step off a case when there is a reasonable chance that there is a conflict of interest or the perception of a conflict, Scalia’s approach was that a Supreme Court Justice should err on the side of non-recusal. More unfairness may result, and an increased perception of unfairness seems inevitable. The unavailability of a justice to replace a recused justice, however, is remediable, and reforms should be considered.

The Constitution neither defines the number of Supreme Court Justices nor does it define how many Justices should decide a case. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct after FDR’s failed attempt to expand the Court in 1937.

Nine remains sacred because proposals to change the size seem partisan. Recent suggestions of enlarging the Court came because that body is firmly conservative and because Republican partisan activities insured a firm majority of rightist Justices. However, there are proposals that would lead to more than nine Justices that could make the Court appear, and perhaps be, less partisan. The reforms could lead to better Justices and make the nomination and approval process less partisan.

The core of the proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy if all of them decided each case. Instead, nine Justices would be picked at random from all the Supreme Court judges to hear a matter.

There are obvious advantages to this scheme. First, of course, there would be replacements for recused justices, and there would be no possibility of an equal split among the justices. The decision to recuse can then concentrate solely on conflicts of interests.

Another advantage is that the enlarged Court could take on more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the result in a litigation. This would give more certainty, uniformity, and finality to the law than we have now.

Drawing nine from a broader roster of justices also would have the advantage of dampening lawyerly gamesmanship. Attorneys now try to predict how each of the nine justices might decide a particular issue and seek review only when they assess the Supreme Court lineup as favorable to their position. That gamesmanship was evident with Amy Coney Barrett’s ascension to the Court. Conservative legal organizations now see a solid Supreme Court majority favoring certain kinds of religious claims, Second Amendment expansion, and the limitation or elimination of the right to abortion and are seeking to get Supreme Court review of cases containing such issues before a Court they see as especially favorable to their viewpoints.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more public focus on the issues and less on the judges. That would be a good thing.

(concluded April 8)