Bench Memos

This Day in Liberal Judicial Activism—June 27

1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Justice Breyer, who provides the decisive fifth vote in each case, explains that for “difficult borderline cases” that are “fact-intensive,” there is “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment, be assured, “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.” The particular factor that Breyer finds “determinative” in the Texas case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.” Thus, under Breyer’s view (as well as that of the other members of the Kentucky majority), American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage. 

Most Popular


God’s Will as Something to Laugh About

President Trump’s decision to appoint Larry Kudlow director of the National Economic Council was a big deal for free-market conservatives. The administration is not just picking up a competent policy wonk with significant experience and instincts in macroeconomics, but also adding a five-star talent in ... Read More
Politics & Policy

‘We Will Reduce Abortion’

Conor Lamb’s success has revived interest in “I’m personally opposed, but.” It’s a rhetorical convention — a cliché, really — that many Catholic Democrats have resorted to ever since Mario Cuomo popularized it with his speech at Notre Dame in 1984, as Alexandra DeSanctis explained a few days ... Read More


In a recent issue, we published a piece on Dante Della Terza, the great Dante scholar at Harvard (now in his nineties). Today, we have an expanded version on the homepage. After the magazine piece was published, I heard from Mark Helprin, the novelist, military analyst, and political writer. I had no idea he had ... Read More
Economy & Business

CRISPR Will Make GMOs Ubiquitous

Labels multiply in supermarkets faster than salmonella at a convenience-store sushi bar. It’s important to keep up; we should all be well-informed eaters. But the onslaught of clean food, natural products, sustainably produced, gluten free, butterflies everywhere, and GMO-free sea salt are just too much. The ... Read More

The Pope Francis Challenge

An unforced error from a Vatican communications office the other day drove me a little something like crazy. The nature of the unforced error is that it is wholly unnecessary and typically distracting. And so it was. Days before, as the fifth anniversary of Pope Francis’s election as pope was approaching, a ... Read More