The Supreme Court Still Can’t Resist Philosophizing

by Jason Richwine

The Supreme Court yesterday ruled 5–4 (with the familiar conservative-liberal split) that a town in upstate New York may open public meetings with a sectarian prayer. Ed Whelan over at Bench Memos has a rundown of the case, Town of Greece v. Galloway, but the legal specifics are not what stand out to me. I’m troubled by the empty rhetoric that always seems to finds its way into court rulings that split along partisan lines.

Here’s Justice Kennedy near the end of his ruling:

Ceremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs.

May I suggest that this statement is gag-inducing? It’s high on rhetoric and low on legal substance, with seemingly no relevance to the Constitution. Frankly, I’m not even sure what it is supposed to mean.

Kennedy is the justice who gave us one of the most infamous rhetorical flourishes in the court’s history, when in 1992 he found a right to abortion in the Constitution by declaring: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” So philosophizing is not a new problem at the court, but it still grates.

Not to be outdone in Town of Greece, Justice Kagan begins her dissent with a paean to Ellis Island: “For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom.” She describes the separation of church and state as “a momentous offering,” “remarkable,” and “breathtakingly generous.” This is the language of a disinterested arbiter of the law?

Kagan then argues that an opening prayer at a public meeting “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share of her government.” That’s poetic, but the First Amendment makes no reference to a “promise” or an “equal share” of anything. Again, this is rhetoric, not legal reasoning.

Given that political bias could easily creep into court rulings, one would expect judges to be especially vigilant about avoiding extravagant language. A court ruling should be a dry and mechanical document that does not even hint that the judge has a personal opinion about what the law should be rather than what it is. In economics, for example, researchers who dressed up their data analysis with philosophical bombast and acerbic asides would see their work disqualified by the top journals. Why is the legal profession so different?

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