Justice recounts cases on Commandments

This from C-J, Photo by Bill Luster.

Breyer speaks at author forum

In 2005, U.S. Supreme Court Justice Stephen Breyer wrote a concurring opinion with the majority in ruling that Ten Commandments displays in two Kentucky courthouses were unconstitutional -- yet one at the Texas Capitol was not and could stay.

"I can't find even one person who thinks I did the right thing," Breyer told more than 500 people at last night's Kentucky Author Forum at the Kentucky Center.

"A lot of people would like them both to be unlawful and a lot of people would like them both to be lawful."

The case was a good illustration of one of Breyer's main points last night: Justices often need to look at the purpose behind the Constitution, not just the strict language.

While the First Amendment says that Congress shall make no law establishing religion, it leaves unclear whether a religious document can be used for secular purposes, such as teaching the history of a religion, Breyer said.

In Texas, the tablet was not erected for religious purposes and, in fact, was one of many posted around the country by director Cecil B. DeMille when he was promoting his 1956 movie, "The Ten Commandments," Breyer said.

"If we say that violates the Constitution, the people who don't want any monuments will go around the country chiseling off Ten Commandments from every public building in every city in the United States, and what's that going to do for religious harmony?" he said. "Well, I don't think it will promote it."

But in Kentucky, officials were intent on proving to the Supreme Court that they could post the Ten Commandments, "and it seemed pretty clear from the
background that they had a religious purpose in mind," he said.

"If we say that's OK, we'll have religious use of religious documents in courthouses throughout the country," Breyer, author of "Active Liberty," said...

Which side is Brown vs. Board on?

Before the Supreme Court ruling in Meredith, I noted how the plaintiffs and respondents had swaped legal approaches - the respondents now arguing for local control, the very thing they argued against in Brown. This Op-Ed from the Los Angeles Times demonstrates the point much better than I did.
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Brown's legal history can't provide absolutes in the search for racial justice.

AS THE Supreme Court wrestled with race-conscious school assignments in Seattle and Louisville, Ky., last week, the justices drew historical figures into the debate. In the most heated bits from the various opinions, each side accused the other of contradicting the objectives of the individuals who laid the groundwork for Brown vs. Board of Education.

In his opinion, Chief Justice John G. Roberts Jr. quoted Robert L. Carter — the black plaintiffs' attorney in Brown — to support the proposition that the Constitution prohibits school districts from taking race into account in student assignment.

Justices John Paul Stevens and Stephen G. Breyer, on the other hand, argued that the principles of racial integration expressed in Brown required the high court to uphold the school districts' use of race.

Roberts' argument carried the day. But the justices' disagreement illustrates a problem well known to generations of law school students: When trying to decide a hard case, you can find two valid, established legal principles that will lead to two diametrically opposing conclusions.

This observation was first articulated by an early 20th century group of reformers called "legal realists." The hardest cases, they noted, are the products of long-standing, unresolved societal conflicts — so precedents often support both sides. As one phrased it, legal principles "are in the habit of hunting in pairs."

The same problem plagues historical interpretations. But that doesn't prevent supporters and opponents of race-consciousness from buttressing their stances with references to the principles held by famous civil rights figures.

"History will be heard," asserted Roberts.

But if history speaks on this subject, it does so in two voices.Take Justice John Marshall Harlan, for instance, hero to both sides of this debate. He was the lone dissenter in Plessy vs. Ferguson, the 1896 Supreme Court decision upholding a law that required racially segregated train cars in Louisiana. Harlan's most famous phrase, "Our Constitution is color-blind," coined in his Plessy dissent, is frequently cited (including by Justice Clarence Thomas in his concurring opinion last week) as if it proves that Harlan would have invalidated all governmental racial classifications.

Most observers fail to notice what the Great Dissenter wrote several paragraphs later: that Chinese persons are members of "a race so different from our own" that it is permissible to deny them the citizenship rights that white Americans enjoy.

Three years after Plessy, Harlan also wrote an opinion for the court that rejected a constitutional challenge to a whites-only school and strongly indicated that school segregation did not violate the 14th Amendment. So as a historical precedent, Harlan stands for two contradictory principles. One sweeps away all state-mandated race consciousness, and the other makes distinctions between black Americans and Chinese immigrants, or between segregated railroads and segregated schools...

...It is tempting to believe that history can provide clear guidance on our difficult modern legal questions. Yet a close look at the historical figures invoked by the Supreme Court last week reveals that they were as deeply conflicted about race-consciousness in their own times as we are in ours. History has a lot to tell us, but it rarely provides a clear signpost. In hard cases, historical precedents, just like legal ones, are in the habit of hunting in pairs.