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Big decision on an uncertain record?


When the Supreme Court is confronting a major constitutional decision, but Justice Anthony M. Kennedy begins the questioning by wondering exactly what case is before the Court, the chances that a big decision will emerge drop perceptibly at the very outset.  And when Kennedy is followed by several colleagues voicing deep doubts about what the facts are, the case begins to look very much like a waste of judicial time.  That was the way the argument came and went Monday in Christian Legal Society v. Martinez (08-1371).

“It is frustrating not to know what is before us,” Kennedy said in the opening minutes.  And Justice Stephen G. Breyer, who had said with the same frustration that the case had become one of “great unclarity,” asked plaintively in the closing minutes: “What do I do with this case?”  In between, the Court went on a spirited, but mostly unrequited, search for the real-world facts about how the Hastings College of Law in San Francisco decides when to allow a student group to gain official campus recognition, and thus access to some money and to the school facilities.

It also seemed that some of the frustration was transferred to the two lawyers who argued.  Former federal judge and now law professor Michael W. McConnell, exasperated that the Court would not let him finish well-crafted sentences (leading him, at times, simply to talk over the Justices), resorted to hyperbole in pleading the case for the Bible-focused student group, the Christian Legal Society.  He suggested that the Law School’s argument was “silly” and “preposterous.”  And former U.S. Solicitor General Gregory G. Garre, although more disciplined an advocate as he defended the Law School’s non-discrimination policy, could not seem to keep some of the Justices focused on the facts as the Society had conceded them to be in the lower courts. If the Court believed the case was too unclear to decide, Garre said, maybe it should simply be dismissed as a mistake.

There is, of course, a real constitutional issue lurking in the case: how far can a public college go in trying to ensure equality of educational opportunity for all students, before it winds up intruding on the private beliefs of a group that is not completely open to all comers?  That is, as several Justices noted pointedly, an issue of genuine significance, and the Court obviously took the Christian Legal Society case to decide it.  But, after wading through hundreds of pages of legal briefs, the Justices did not appear to have come to the bench with a firm idea what was actually at stake.  And Justice Samuel A. Alito, Jr., seemed dismayed that the Ninth Circuit Court had disposed of the case with but two sentences.

At the lectern, McConnell sought energetically to make the case into a clear-cut exhibit of blatant anti-religious bias, and would not relent even as several Justices pressed him to come up with evidence that the Society had actually been mistreated or treated differently.  Garre sought with just as much energy to demonstrate that the case was a simple demonstration of a litigant who had given everything away by stipulation and was now trying to undo the concessions, even as several Justices wanted to know more about what the school’s policy was, or even — as Chief Justice John G. Roberts, Jr., put it — whether there was a single policy or a multiple of them constantly shifting in content.  Garre had to weather a blizzard of hypothetical scenarios about how the policy would work on groups other than the Christian Legal Society.

Thus, as the Court later this week starts discussing the case in private, preparing to cast a preliminary vote, the first question it may have to resolve is whether the Justices on their own should reconstruct the factual record, make some assumptions about it and call that good enough to reach the constitutional issue, or return the case to a lower court with a command to get it sorted it out before the case moves another step toward final resolution.

From questions and comments, it appeared that the Justices would line up — at least preliminarily — this way: the Chief Justice and Justices Alito and Antonin Scalia were sympathetic to the Christian Legal Society’s challenge, Justice Ruth Bader Ginsburg was sympathetic to the Law School’s non-discrimination goal and doubtful about the Society’s evidence of bias, Justice Sonia Sotomayor seemed more persuaded by the Law School’s argument than the Society’s, Justices Kennedy and Breyer were the most uncertain about going forward to a final ruling on the merits, and Justice John Paul Stevens said too little (and Justice Clarence Thomas nothing at all) to give a hint where he might be leaning.  Assuming that Stevens and Thomas might take opposite sides, it appeared that either Kennedy or Breyer, or perhaps both, would hold the balance.

If, in all of the uncertainty, there was one category of evidence that the Court most wanted to know about, it would be whether the Christian Legal Society had been singled out for denial of official recognition when other groups also followed selective membership policies and yet got recognized.  “It is a much different case,” Justice Kennedy remarked, “if Hastings treats the CLS differently.’  That, he told McConnell, would make it “easier for you.”  But, Kennedy then commented, it was not clear what Hastings actually did, or does.  Although McConnell tried to argue that, however the policy is described, it is unconstitutional, but that did not seem to satisfy anyone on the bench.

And, while McConnell tried to reinterpret the scope of the stipulation to which the Society had agreed in lower courts, Kennedy accused him of trying “to get away from the stipulation.”   Justice Ginsburg soon drove home that point, saying the two sides had jointly told the District Court judge: “Here are the facts.” And, for emphasis, she added: “And the facts were not qualified at all.

Kennedy also added a complication that neither side had argued in the case: whether the Court could decide the case, when it turned on a public entity having to accommodate a private group’s religious beliefs, without having to confront the need to keep religion and government separated. “We have to consider that,” Kennedy said, although he did not then pursue it further.

Garre’s most aggressive questioner was Justice Alito, who said that the school had not adequately responded to the Society’s claim, made “over and over again,” that Hastings did not require any group but the Society to have an open-membership policy.  Garre tried to deflect the question by saying that, if the Society actually believed that to be the case, it should not have stipulated to the facts in the District Court as it did.

Alito also suggested that the school policy were applied as Garre had described it, a group of ten Muslim students would have to allow 50 students who had strongly anti-Muslim views to come in, take it over, and run it as they pleased.  “You would say the First Amendment would allow that,” the Justice commented.  “That has never happened in 20 years,” Garre responded, but both Alito and then the Chief Justice dismissed that comment as unresponsive.

There is no timetable for the Court to issue a final ruling, or otherwise dispose of the case.  If, however, the case is going to be cast aside, perhaps because of the state of the record, that could come quickly.