Courts Taking a Bite Out of Establishment Clause

      The Supreme Court took a bite out of the constitutional prohibition against establishment of religion in June by allowing a Maryland state agency to display and maintain a 40-foot Christian cross on public land as a World War I memorial. Writing for the majority in American Legion v. American Humanist Association, Justice Samuel A. Alito Jr. based the decision on the premise that the so-called Peace Cross in Bladensburg, Maryland, had historic significance as a memorial to fallen wartime service members apart from its symbolic affirmation of Christian doctrine.
      Alito's opinion tracked the central argument that Neal Katyal, the former acting U.S. solicitor general, made in defending the Peace Cross on behalf of the Maryland-National Capital Park and Planning Commission. Katyal emphasized that the cross had acquired an "objective meaning" as a memorial to the millions of service members from all sides killed in World War I, including the 49 men from Prince Georges County killed while wearing U.S. uniforms.
      Civil libertarian supporters of church-state separation had expected the Court, with its conservative Republican majority, to allow the cross to continue standing where it has stood for 90 years, but hoped for a narrow ruling that would maintain limits on how far the government can go in favoring or endorsing one specific religion. The American Civil Liberties Union issued a statement on the day of the ruling, June 20, describing it as a "narrow" decision.
      The Court sent a signal a week later, however, that the decision portends a relaxed view for future Establishment Clause challenges beyond the specific facts of the Peace Cross case. In a brief order issued on June 28, the justices told the Eleventh U.S. Circuit Court of Appeals to reconsider its decision to bar the city of Pensacola, Florida, from maintaining a stand-alone, 34-foot Christian cross in a public park in the city. 
      The wooden cross at issue in Kondrat'yev v. City of Pensacola was erected in 1941 by the National Youth Administration to serve as the focal point of what was to become an annual Easter sunrise program — in short, the setting for an annual religious service in a government facility. The appeals court found the cross to run afoul of the Establishment Clause in a decision issued in September 2018, but the Supreme Court gave the city a partial victory in its appeal by ordering the appeals court to reconsider its decision in the light of the justices' ruling in American Legion.
      By the way, the city of Pensacola's official seal includes a Christian cross as its central image. A cross is also the central image in the official seal that Lehigh County, Pennsylvania, adopted in December 1944. The Lehigh County seal is the focal point of an Establishment Clause suit filed by the Freedom From Religion Foundation but rejected on Aug. 8 by a panel of the Third U.S. Circuit Court of Appeals.
      In his opinion for the appeals court, Judge Thomas Hardiman, a two-time runner-up for a Supreme Court seat, applied American Legion in finding no constitutional violation. Hardiman conceded that the plaintiffs suffered legal injury as a result of "direct and unwelcome contacts" with the official seal, but he read the Court's new decision to give a presumption of constitutionality to "longstanding symbols" that incorporate religious imagery
      At the Supreme Court, attorney Michael Carvin, representing the American Legion, conceded that some governmental displays of a Christian cross would likely violate the constitutional prohibition against establishment of religion. In answering a question from Justice Brett Kavanaugh, Carvin adopted Justice Anthony M. Kennedy's suggestion in a decision in the 1980s that a Christian cross atop city hall would be unconstitutional, because, as Carvin explained, "it constitutes proselytizing."
      Carvin went on to reject some of the hypotheticals suggested by the other side in the Peace Cross case. "If they're putting up crosses at every courtroom, every DMV window, and all the parade of hypotheticals we've gotten on the other side, I can certainly understand why somebody would believe that they're trying to convert you to Christianity." he told the justices.
      Pensacola and Lehigh County both seem to have gone too far, under Carvin's reasoning and under the Court's fact-specific decision in the Peace Cross case. The Bayview Park cross in Pensacola serves as the stage for a religious service. The Framers of the First Amendment surely would have deemed it improper for the government to use public funds to build a church or an outdoor facility for the specific purpose of holding religious services.
      The city seals in these two municipalities also offend church-state separation by incorporating the preeminent symbol of Christian doctrine, just as much as a Christian cross atop city hall would give official imprimatur to one religion over all others. The non-believing Lehigh County plaintiffs complained of seeing the seal with its Christian cross, for example, when paying real estate tax bills or reporting for jury service, analogous to Carvin's hypothesis of a cross on every DMV window.
      The self-styled religious freedom advocates who defend these governmental displays of Christian symbols are no friends of the religious freedom embodied in the First Amendment. The Framers wanted nothing to do with government-established religion, but the self-styled originalists on the Supreme Court have lost sight of that original understanding of the Establishment Clause and may be leading lower courts to go farther afield from that original understanding as well.

Trump's Responsibility for El Paso Massacre

      President Trump's perfunctory denunciation of "racism, bigotry, and white supremacy" after a young white supremacist's massacre of Mexicans in El Paso would have been too little, too late even if it had been believably sincere. But Trump's frozen features as he read prepared remarks from a teleprompter [August 5] made clear to everyone, white supremacists included, that he was merely going through the motions.
      Trump has been guilty of racist conduct from his earliest days in the family business, as seen in the settled fair housing discrimination case in the early 1970s. Moreover, he has used racist rhetoric from his first days as presidential candidate and, after his election, as president to hold and rally his political base--as, for example, in calling for three black, natural-born U.S. citizen members of Congress to go back to where they came from.
      With his re-election campaign under way, Trump now can ill afford to alienate any part of his political base, including those who make no secret of the racist views that motivate their anti-immigrant outbursts. Trump regularly promotes these views at his political rallies, as documented in a compilation by USA Today. The newspaper found that in 64 rallies since 2017, Trump had referred to Central American and Mexican migrants at least 500 times in "incendiary terms," such as "invasion," "animal," and "killer."
      Admittedly, Trump's reckless encouragement of anti-immigrant sentiment would not qualify as legal incitement for Patrick Crusius's deadly shooting spree in predominantly Hispanic El Paso [August 3]. But the president bears a degree of moral responsibility for propagating and normalizing the kind of anti-immigrant views that turned the young community college student into a vigilante taking up arms against what the white supremacist fringe calls "white replacement."
      In fact, Crusius aped Trump's terminology in what is believed to be his online posting before the shooting that he was trying to stop "the Hispanic invasion of Texas." That description of present-day immigration from south of the border can come from no other source than Trump: in three decades of sharp debates about immigration policy in the United States, anti-immigration politicians and advocacy groups had never before couched the issues in terms such as those Trump has used.
      Trump sought to absolve himself of any responsibility, legal or moral, by blaming Crusius' crime on mental illness, the favored explanation from the gun lobby and their supporters for mass shootings. With no psychological training nor any evident ability in self-analysis, Trump is peculiarly unqualified to diagnose Crusius at a distance. Indeed, mental health experts quoted in news coverage appeared to agree that Crusius showed no symptoms of diagnosable mental illness.
      As for policies to address mass shootings, Trump used his prepared remarks to bat away the natural thought that perhaps guns are to blame. "Mental illness and hatred pull the trigger. Not the gun," he recited. Statistics cited by the CNBC journalist John Harwood on Twitter suggest otherwise. Of the 40 deadliest mass shootings in the United States since 1949, 26 have occurred in the 15 years since the Republican-controlled Congress allowed the assault weapons ban enacted in 1994 to expire in 2004: only two during the decade when the assault weapons ban was on the books.
      With public opinion coalescing around some kind of legislative response, Trump appeared at week's end to be accepting some form of stronger background checks for gun purchasers. Even if enacted, stronger background checks might do very little to prevent the next mass shooting. Apart from a higher minimum-age requirement, Crusius seemingly had nothing that he would have needed to list on an application that would have disqualified him from purchasing an otherwise legal weapon.
      Trump went so as to claim credit for the yet-unenacted proposals to keep guns away from or take guns away from people who pose dangers to themselves or others. "“I think we’re going to come up with something, something really good, beyond what’s done so far," he remarked, referring to background checks or so-called red flag laws.
      As for an assault weapons ban, however, Trump saw no prospects. " “I can tell you is there is no political appetite for that at this moment," he told the White House press pool in unscripted remarks on Wednesday [August 7].
      The week ended with Trump reportedly resentful of the less-than-glowing reviews he received for his visit to El Paso, highlighted by the stinging criticism of his mugging for the cameras as Melania held an infant orphaned by the killing of his two parents in the massacre. As a reminder, President Obama showed more presidential leadership seven years ago after the mass shooting at the Sandy Hook School in Connecticut. He was somber and respectful at a vigil two days later and, four years later, was shown in photographs to be tearing up as he talked about the episode.
      Racism and violence have been inherent in Trumpism from the start of his preposterous claim to make America great again. Note that the crime Trump claimed during his campaign he could commit with legal and political impunity was itself a gun crime: shooting someone on Fifth Avenue in New York City. One step to try to prevent the next mass shooting would be at the least a change in presidential rhetoric or, better, a change in the presidency itself. For that, it appears a country in grief must wait yet another year.

Time to Make the Supreme Court Great Again?

      President Trump and the Senate's Republican leader Mitch McConnell have both listed Trump's record-setting appointments of more than 140 federal judges as one of Trump's most important accomplishments in office. Many of those judges, like Trump's two Supreme Court justices, were confirmed by party-line votes in the face of strong opposition from Democrats and liberal advocacy groups, but the issue of judicial appointments went all but completely unmentioned in six hours of Democratic presidential debates last week [July 29, 30].
      The American Constitution Society (ACS), the liberal counterpart to the conservative Federalist Society, led a coalition of groups in urging CNN moderators beforehand to ask the assembled Democratic hopefuls about Supreme Court and judicial appointments, but to no avail. Media commentators noted critically afterward that the CNN moderators appeared to be selecting issues with an aim to highlighting disagreements among the Democrats instead of their shared disagreements with Trump and his policies.
      With the debates over and judicial appointments unmentioned, a truncated debate broke out on Twitter over the political value or risk for Democrats in making the Supreme Court and judicial appointments an issue in the 2020 campaign. Historically, a half-century of presidential campaigns shows that Republicans from Richard Nixon to Donald Trump have made the high court their winning issue time and again; Democrats have tried only weakly to use the issue to mobilize Democratic and independent voters.
      Democrats can and must do better in 2020, according to leading groups on the legal left. They want the eventual Democratic nominee to go beyond bland promises to appoint justices in the style of Brennan and Marshall and to go all in by backing structural reform, such as increasing the size of the Court, to neutralize the Republican justices' current majority.
      Aaron Belkin and Sean McElwee, director and polling director respectively of Take Back the Court, argued in an article written for Salon that Democrats must "recognize and reckon with the fact that the high court is a political institution that has been hijacked by the GOP to advance a partisan agenda on behalf of corporations and billionaires." Belkin and McElwee go on to say that it is "an imperative that  Democrats make the case to voters that democracy cannot be restored unless the court is reformed."
      Belkin and McElwee do not cite particulars, but the Court's end-of-term decision to close federal courts to legal challenges to the unpopular practice of partisan gerrymandering may leave it peculiarly vulnerable to attack for being uninterested in protecting voters' rights. Belkin and McElwee in fact promise a forthcoming report that will show Chief Justice John G. Roberts Jr. to vote just as conservatively as his conservative colleagues and his reputation for centrism "wholly at odds with his record."
      Among the two dozen Democrats currently in the running for the presidential nomination, 11 say they are open to expanding the size of the Court. One of those, Pete Buttigieg, has gone further by expressing interest in the proposal by two academics to expand the number of justices to 15. The balanced bench proposal by the two professors calls for five justices from each of the two major political parties and the other five chosen from sitting federal appellate judges by the other 10 by either unanimous or supermajority vote.
      Any discussion of changing the size of the Court will lead opponents to draw parallels to President Franklin D. Roosevelt's ill-fated "Court packing" proposal at the beginning of his third term in the White House. Present-day advocates of structural reform will be hard pressed to counteract the lesson drawn from that episode, but the distinction can be drawn by noting, for example, McConnell's role in blocking President Obama's nomination of the widely respected moderate appellate judge Merrick Garland in 2016.
      McConnell's role in keeping the vacancy open through the November election allowed Trump to use the issue to great effect, according to post-election exit polls. The Supreme Court was the most important issue for 21 percent of voters, according to the CNN poll, and more than half of those voters went for Trump.
      Democrats in 2020 need to make the Supreme Court their issue. They can do that by emphasizing the role that the Roberts Court has already played in weakening protections for workers and consumers and the role that an unreformed Court could play in undoing policies to address health care, climate change, and gun safety. Democrats should also promise to take judicial appointments out of the hands of the Koch Brothers-financed Federalist Society and promise to appoint fair-minded judges with no ideological agenda other than protecting liberty and justice for all.
      Senators from both parties are certain to accuse the other party of politicizing judicial appointments. History shows that Republicans have done that for 50 years, but Democrats not so much. Four of the Republican-appointed justices on the current Court were confirmed in party-line votes by historically narrow margins, with fewer than 60 votes each. All four of the Democratic-appointed justices came to the Court with reputations as judicial moderates and won confirmation by wide margins: Sotomayor and Kagan with more than 60 votes each and Ginsburg and Breyer with 96 and 87 votes respectively.
      It is time to make the Supreme Court great again. That could be and should be a winning message for Democrats in 2020, with or without a cap.