Bench Memos

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An Innocent Abroad


The Paper of Record (that would be the NYT) ran an admiring story today about Sandra O’Connor’s latest hobbyhorse: web-based civics lessons.  As Matt Franck noted last week, O’Connor seems blithely unaware of what has been going on in American constitutional law and the politics thereof since, well, around the time she ascended to the Court.  At least, that is the reading which charity commends; the alternative reading is (as Matt suggested) too cynical to entertain this early in the morning.  According to O’Connor the take-away from “recent years” is simply this: “vitriolic attacks” by some members of Congress, state legislators, and “private interest groups” which threaten the “independence” of the judiciary.  Just who might these unpatriotic folks be?  Not NARAL, the ACLU, the People for the American Way, or any other left-leaning group which has been known to dabble in judicial politics.  Not even Barack Obama, who voted against Roberts and Alito because they could be counted on merely to decide cases according to law. For Sandra O’Connor, all the courts’ enemies are to the right: those who decry “judicial activism”, who complain that judges are “godless secular humanists”  — the usual suspects whom Times readers will instantly recognize as the “vast right-wing conspiracy”, people who cling to guns and religion because, well, they are losers.  O’Connor concedes absolutely nothing — zilch, nada — to the complaints of these folks.  For her, evidently, there is no such problem as “judicial activism”.  The only problem is presented by those who say that there is. 

But there’s more naivete on display in today’s story.  O’Connor wants to get the word out to school kids: pay no attention to the bogeyman who crokes “judicial activism” from under your bed at night.  That is all scare-mongering.  But why the great interest in kids?  “[W]e can’t forget”, said O’Connor, “that the primary purpose of public schools in America has always been to help produce citizens who have the knowledge and the skills and the values to sustain our republic as a nation, our democratic form of government.”

It is indeed true that the public schools have long been seen as “bulwarks of the republic” — for better and for worse.  Does O’Connor not know that it was precisely by inculcating religious values — belief in God and God’s Providence, piety, and biblical morality — that the public schools were supposed to preserve the republic?  Does she not understand that for generations these public-school values were, more or less expressly, Protestant?  Could O’Connor not understand that the origins of compulsory public schooling in America are inseparable from Protestant elites’ efforts — exactly — to wean Catholic children from the faith of their parents, so as to make them (the Catholic kids) safe for democracy?  Is O’Connor ignorant of the palpable role that that this same religious animus played in the Court’s “wall of separation” jurisprudence, starting with Everson in 1947, and lasting (at least) until the 1980′s  — that is, after she joined the Court?  Does O’Connor not recall that, on her watch, the Court consummated the secularization of American public education begun in the 1960′s, and that colleagues such  as William Rehnquist and Antonin Scalia wrote cogent opinions criticizing the campaign as, in a word, activist? Could O’Connor  nonetheless honestly believe that the secular public school is the primary bulwark of democracy, that it is (somehow) unquestionably ordained by the Constitution, and that anyone who thinks otherwise is a threat (in her words) to a “robust constitutional democracy”?

Evidently, she does.  To hold otherwise is just too cynical. 


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