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A “view” from the Court: A divided ruling on prayer, but no fireworks

Oral arguments for the Term ended last week, so from here on out, it’s nothing but opinions emanating from the Supreme Court’s mahogany bench.

There’s no line outside the Court this morning, which is good news for the tourist family I was chatting with over the weekend and whom I encouraged to visit the Court today to hear opinions. I’m assuming that if they showed up, they were able to get in. After a recess next week, the court will convene most Mondays for the rest of the Term (and on the Tuesday after Memorial Day). Some extra days will no doubt be added, in addition to Mondays, by the time we get to mid-June.

The Justices take the bench, except for Justice Sonia Sotomayor, who is absent. Justice Elena Kagan has a rather glum look on her face, and we’ll soon learn why.

Justice Stephen G. Breyer has the opinion for the court this morning in Robers v. United States. It involves a man convicted of wire fraud related to mortgage loans he took out. He was hoping that the falling real estate market of a few years ago would help him elude some of his restitution obligations. It will not, as Justice Breyer explains in a unanimous decision about the Mandatory Victims Restitution Act of 1996.

“It’s all in writing if you have trouble following it,” Breyer explains this morning, though his announcement was chipper and relatively easy to follow.

Next, Justice Anthony M. Kennedy has the opinion for the Court in Town of Greece v. Galloway, about clergy-delivered prayers before the regular town council meetings of the small community in upstate New York.

This case, argued last November, is one of the most important left from the fall argument sessions. Justice Kennedy explains how the town had turned to the “local directory” of congregations to find clergy members to deliver a prayer at its monthly council meetings.

The town’s leaders maintained that a minister or layperson of any persuasion, even an atheist, would be welcome to the task. But “in practice most of the guest ministers turned out to be Christian,” he says.

While it was true that some of the ministers referred to Jesus Christ, the majority of the prayers followed in the same tradition long followed in Congress and the state legislatures, Justice Kennedy says.

“From the earliest days of the Republic, legislative prayers have been considered compatible with the Establishment Clause,” he adds.

Justice Kagan’s expression grows a bit more glum. She had taken the lead during oral arguments in questioning the prayer practices as they had been carried out in the town of Greece.

Justice Kennedy continues. After describing the Court’s 1983 decision in Marsh v. Chambers, which upheld prayers in the Nebraska legislature, he declares that “Marsh controls the Court’s decision today.”

Noting that the challengers here were not seeking to end the practice altogether but to require more diverse, ecumenical prayers in public meetings, Kennedy says the government may not require ministers to remove the religious character of a prayer “to make it acceptable for the public sphere.”

In rejecting the idea that legislative prayers must be nonsectarian, the Court does recognize a constraint on such prayers, he adds.

“The purpose of legislative prayer is to lend gravity” to sessions where “the divisive business of governing” will take place.

The prayer tradition reflected in Marsh permits those delivering the prayers “to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths.”

Justice Kennedy is walking a tightrope of sorts, since we will soon learn that although he has a majority for most of his opinion (made up of the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr.), Justices Scalia and Thomas have not signed on to his discussion of coercion.

Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood, he says.

“But in the general course legislative bodies do not engage in imper­missible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate,” Justice Kennedy says.

He announces the five-to-four line-up, with Justices Ruth Bader Ginsburg, Breyer, Sotomayor, and Kagan in dissent. Although Justice Breyer has written a dissent, it is evident that because all in the minority have signed on to Justice Kagan’s dissent, hers is the main one.

So all eyes in the courtroom briefly turn to her, in expectation of a dissent from the bench. Surely this is the kind of case that qualifies, and some Justices have recently read their dissents in less far-reaching decisions.

I’m thinking of Justice Breyer, in his dissent to the 2012 decision in Knox v. Service Employees International Union, a union-fee case in which Breyer said the issue was something “that normally wouldn’t warrant my saying anything from the bench.”  But he said a good bit anyway.

And then there was Justice Scalia’s oral dissent last week in Environmental Protection Agency v. EME Homer City Generation. The majority decision upholding the federal agency was not “of earth-shaking importance,” he said, but it was worthy of an oral dissent because it was emblematic of the growth of the “unelected bureaucracy operating under vague statutory standards.” (It turns out that Justice Scalia’s dissent will be remembered, although much less for his oral delivery than for his erroneous characterization of an earlier case – a mistake that was quickly corrected.)

But there will not be an oral dissent today from Justice Kagan. Her twenty-five-page written dissent is a vivid answer to the majority. But in the courtroom today, she remains silent.


Recommended Citation: Mark Walsh, A “view” from the Court: A divided ruling on prayer, but no fireworks, SCOTUSblog (May. 5, 2014, 5:17 PM),