Bench Memos

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Re: What Cass Sunstein Has Missed


On returning from a week away, I have one quick follow-up to this post on Cass Sunstein’s remarkably sloppy reflections on the Supreme Court.  In the course of my challenge to Sunstein’s assertion that Justice Kennedy’s “views on key issues are far more conservative than those of Powell, Stewart, and White, the distinguished moderates on the Burger Court,” I observed parenthetically that I wasn’t immediately familiar with Stewart’s reading of the Establishment Clause. 


A reader calls to my attention that Stewart was the sole dissenter from the Supreme Court’s 1962 ruling in Engel v. Vitale, which barred the recital of prayer in public schools, even where the prayer is denominationally neutral and student participation is voluntary.  (White didn’t take part in the case.)  There is quite a gap between Stewart’s position in that case and Kennedy’s opinion in Lee v. Weisman, but it cuts in a direction precisely opposite to what Sunstein posits.  Indeed, Stewart takes the same approach that Justice Scalia takes in his dissent in Lee v. Weisman.  In Stewart’s words: 

What is relevant to the issue here is … the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.  [Numerous examples provided.]  I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an “official religion” in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their “firm Reliance on the Protection of divine Providence” when they proclaimed the freedom and independence of this brave new world.

Tags: Whelan


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