The Roberts Court: No Longer Just an Umpire

A Chief Justice Who Doesn’t Respect Precedent

Not as Advertised: John Roberts has turned out to lead a very different type of court than promised.
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Not as Advertised: John Roberts has turned out to lead a very different type of court than promised.

By J.J. Goldberg

Published May 19, 2014, issue of May 23, 2014.
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By now you’ve probably heard about the controversial May 5 decision by the U.S. Supreme Court, letting an upstate New York town open its monthly board meetings with an explicitly Christian prayer. You probably haven’t heard its most alarming implications, though. Buckle up.

The case involves the Town of Greece, a stolidly middle-class suburb of Rochester. Back in 1999, Greece began inviting local clergy to open the town board’s public meetings with a prayer. In 2008 two residents, Susan Galloway, who’s Jewish, and Linda Stephens, an atheist, filed a lawsuit. All the invited preachers had been Christian. Having to sit through paeans to Jesus’ resurrection before participating in town meetings, the women complained, “puts coercive pressure on citizens to participate in the prayers.” The Supreme Court said it doesn’t. It’s just “ceremonial,” whatever that means.

This being the Supreme Court, the decision frees local governments nationwide to follow Greece’s lead and ask citizens to bow their heads in acknowledgement of, for example, “the saving sacrifice of Jesus Christ on the cross,” before bringing their business before their elected council members.

That’s not most alarming aspect, though. We’re talking about a historic turning point in American jurisprudence. For the last 67 years, going back to Everson v. Board of Education in 1947, this nation was progressing more or less steadily toward creating a neutral public square where all citizens are treated equally, whatever their religion. For decades the Supreme Court insisted, as it ruled in Engel v. Vitale in 1962, that even the most “indirect coercive pressure upon religious minorities” is unconstitutional. We were reaching the point where religious dissenters needn’t feel like guests in their own home.

Now we’re apparently reversing course. The court’s 5-4 Town of Greece ruling, neatly dividing the Republican and Democratic appointees, says that, hey, a little shout-out to Jesus can’t hurt anyone — as long as its “purpose and effect” aren’t “to exclude or coerce nonbelievers.” And if anyone is accidentally offended — well, tough luck. “Offense,” Justice Anthony Kennedy wrote, “…does not equate to coercion.” The government is free to make you squirm as long as it doesn’t point a gun at your head.

But that’s not the most alarming part, either. In rolling back a half-century of court precedent on church-state separation, the justices continued a practice that’s come to characterize the court under Chief Justice John Roberts: disregarding precedents the conservative majority doesn’t like.


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