Town of Greece v. Galloway

Let us now bow our heads in observance of this episode about why the Supreme Court thinks it's OK for a government to have prayer before public meetings, but NOT OK for the town to manage who gives that prayer or what they pray about. Amen.

A podcast where we dissect and analyze the Supreme Court cases that have caused our rights to short circuit, like the electricity of co-host's home

0:00:00.3 S?: We'll hear argument. First, this morning in case 12-696, the town of Greece versus Galloway.


0:00:09.6 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, the hosts are talking about a 2013 case called Town of Greece v. Galloway, about whether the constitution prohibits government officials from opening their town meetings with a Christian prayer.

0:00:26.8 S?: For those who are willing may join me now in prayer. Almighty and everlasting God, Father, Son, and Holy Spirit. I count it a great privilege, this evening to be able to come before your throne of grace, asking for your mercy to be upon this meeting of the Greece town board. You are a great and a majestic God.

0:00:46.6 Leon: In a five to four decision, the great and majestic Supreme Court held that the government can subject citizens to prayer in official proceedings but cannot regulate who gives the prayer or what it's about. This is 5-4, a podcast about how much the Supreme Court sucks.


0:01:06.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our rights to short circuit, like the electricity in my co-host's home. I'm Peter and I'm here with Rhiannon.

0:01:17.2 Rhiannon: Hey.

0:01:17.3 Peter: Michael taking the week off because he doesn't have electricity right now. [laughter]

0:01:23.5 Rhiannon: It's funny that you said that metaphor, it applies to both of your co-hosts. Actually, I am also waiting on an electrician services, but I do currently have electricity, so here I am.

0:01:33.1 Peter: Of all the problems you guys have had that are preventing you from recording, not having electricity in the year of our Lord 2021. I mean, give me a break.

0:01:42.5 Rhiannon: We miss you, Michael.

0:01:43.8 Peter: How are you Rhi?

0:01:44.6 Rhiannon: I'm doing fine, I'm doing fine. I am very busy at work, the holidays, it turns out, do not mean that the cops stop arresting people, so... You know, business as usual.

0:01:56.9 Peter: Yeah, and I just got my booster, my Moderna, third dose. [0:02:03.3] ____.

0:02:08.2 Rhiannon: Derned up.

0:02:09.5 Peter: Microchips coursing through my veins. I feel smarter every second. Today's case is Town of Greece v. Galloway. This is a case about the separation of church and state, specifically, it's about whether it's okay that the upstate goobers in Greece, New York, opened their monthly town meetings with a prayer from a local religious leader who happened to be Christian every single time.

0:02:37.9 Rhiannon: That's right, yeah.

0:02:39.0 Peter: So the simple question here is, when the government hosts an officially sponsored prayer, and every single prayer happens to be Christian, is that a violation of the Constitution or a harmless coincidence? And the court in a five to four decision written by Anthony Kennedy says, no big deal. You can do that. So it's a case about competing interpretations of the idea of the separation of church and state from the liberals who believe in it to the Conservatives who do not. That's really the divide there. So Rhi, some context here?

0:03:14.6 Rhiannon: Yeah, let's jump right in. So like Peter said, this happens in a town in upstate New York called Greece. Now, beginning in 1999, the town of Greece began inviting local members of the clergy to lead prayer sessions at the beginning of its town board meetings, which happened once a month. Now, how did they choose the people who would lead these prayer sessions? So in the beginning, city employees chose the volunteer chaplains by calling congregations within the town limits. They were calling people off of a publication by the town's Chamber of Commerce that had these local congregations listed on it.

0:03:53.4 Peter: It was like a community guide.

0:03:55.2 Rhiannon: That's right, exactly. But over time, the city employees started to rely on an internal list of chaplains who had previously accepted their invitations and had agreed to return in the future, so as a result, between 1999 and 2007, all of the participating ministers were Christian, and it wasn't publicized in any way that all faiths were welcome to volunteer. They didn't have a policy that said that non-Christians couldn't come and lead the prayer session every month, but at the same time, they didn't make public that anybody else was invited. So in 2010, two residents of the town of Greece brought suit saying that this city policy violated the establishment clause of the first amendment.

0:04:46.9 Peter: The establishment clause says that the government shall make no law respecting an establishment of religion, and this is what's colloquially referred to as the separation of church and state. So here you have this town that opens its monthly public board meetings with a prayer by local religious leaders, they claim they're not exercising any preference for any particular religion, and that they never rejected a request by anyone to speak and do the prayer, but again, there's no formal process for which religious leader gets chosen, they start by going through this pamphlet published by the Chamber of Commerce, and then they start just calling on religious leaders who had previously accepted the invitation, so you get nine years or so, eight or nine years where it's all Christians. And the question is, does that violate The Establishment Clause, the separation of church and state by favoring Christianity. Justice Anthony Kennedy, our resident dummy at the time, he says, No, you're good. That's fine.

0:05:48.4 Rhiannon: Totally fine.

0:05:49.4 Peter: And he starts off by talking about precedents. There had been a Supreme Court case in the 1980s, Marsh v. Chambers that held that generally speaking, it was okay to have prayers before legislative sessions because it was common at the time of the founding.

0:06:04.6 Rhiannon: Yeah, so Marsh v. Chambers was a weird case, but it's interesting to me here to look at the precedent and the Juris Prudential developments in this area of the law, and then how the conservatives on the Supreme Court are inconsistent with their own rules that they make up. So at issue in Marsh v. Chambers was whether it was a violation of the Establishment Clause, if a state legislature opened each of its sessions with a prayer by a chaplain who was paid by the state. And up until that point, there was already an established test or a process that the court would go through to decide if this kind of state action was a violation of the Establishment clause, that test was called the Lemon test, because it comes from a case called Lemon v. Kurtzman, and as part of that test, the court would examine basically the state action towards the religious entity and ask, is there a clear secular purpose here? If there's a non-religious purpose, then probably this activity is fine under the establishment clause because it's not too entangled with religion, right?

0:07:11.6 Peter: There's obviously no secular purpose to having a prayer.

0:07:15.8 Rhiannon: Exactly, exactly.

0:07:17.3 Peter: It's inherently very religious.

0:07:18.4 Rhiannon: Right, so that test was already established at the time that Marsh v. Chambers came to the court, but in Marsh, the court said, Fuck it, we're not going through that process, basically because the Conservatives would not have liked the outcome of the test in Marsh.

0:07:35.2 Peter: We could have done a whole episode about Marsh v. Chambers, because to a degree, that's sort of the root of the problem here, this case that says it's totally fine to have a prayer session before a public legislative meeting starts. So a lot of people had been calling on the court to just overturn that case, but Kennedy says No, we're not overturning it.

0:07:56.1 Rhiannon: Kennedy says, "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society."

0:08:10.6 Peter: Seems a little strong.

0:08:11.7 Rhiannon: Right. Just abandoning the rules, abandoning the lemon test, abandoning the process the court had made up for itself already.

0:08:19.4 Peter: I love that fabric of our society quote, because obviously, it's meaningless. I think it's inherently insane to say that opening monthly town meetings with a prayer is part of the fabric of our society, what the fuck you even talking about. But also it's like, This is the kind of... Scalia signed on to this. This is a kind of language that someone like Scalia, if he was opposing it, would grab on to his just fluffy, unctuous bullshit.

0:08:44.4 Rhiannon: Exactly right.

0:08:46.1 Peter: You know, they're not holding on to anything real when you start talking in these complete vagaries.

0:08:49.9 Rhiannon: Well, it's such an easy counter-argument, there are tons of things that we have always done, or tons of state actions that have historically been common that are violations of the constitution, it just doesn't make sense to say that because something is ultra common or ultra historical that that's the test for whether or not it violates the Constitution.

0:09:11.8 Peter: He could have just as plausibly cited "history" to make the exact opposite point that historically the establishment clause was designed to protect people from an oppressive majority religion. They're sort of stacking bad precedent upon bad precedent, and you can see how this one deviation from the First amendment jurisprudence that existed sort of leads down this path at the court and the public then have to reckon with. So the next question, and really the main question in this case is, does the fact that essentially every prayer was a Christian prayer, does that exhibit a preference for Christianity that violates the Constitution, and Kennedy says no, they weren't exhibiting any preference, it was just the natural results of the town being predominantly Christian. And not only that, but he says that requiring non-sectarian prayer or otherwise having the government sort of apportion the prayers that go to different religions is itself a violation of the Establishment clause because it results in the government dictating religious behavior. So not only is the town's practice not violating the establishment clause, but the remedy sought by the respondents who wanted sort of non-sectarian prayers, if there were gonna be any, would itself be a violation of the Constitution, that would be excessive government entanglement with the religion, which is what he says explicitly.

0:10:34.8 Rhiannon: Nonsensical.

0:10:35.8 Peter: But that feels like a very incomplete argument in this case, because the government has already entangled itself with religion by allowing for and endorsing prayer before its public meetings and literally selecting who does the prayers.

0:10:48.1 Rhiannon: Exactly.

0:10:48.9 Peter: How was all of that not entanglement with a religion, but the government taking steps to ensure fair representation in the prayers that all of a sudden is excessive entanglement with religion.

0:10:58.9 Rhiannon: That's right. And just as Kennedy's logic here really flies in the face of the meaning and the purpose of the establishment clause, so Kennedy is saying that there's no problem because the majority religion in this town is Christianity, so there's no problem if their prayers happen to end up being all Christian. But that completely sort of sets aside the reason why the establishment clause is in the Constitution very clearly, which is to protect minority religions, it's to protect communities in the minority from excessive government entanglement, excessive government coercion in establishing a majority religion or in establishing attacks on minority faiths. And the way Kennedy relies on history here is sort of political and selective, the history that Kennedy is looking at is not some objective means to come to an answer in the case. At one point in the opinion, Kennedy says that the main question... The main thing that the court has to decide here is "whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures," and you just can't tell me that that's the test, that is the constitutional legal test, whether something has been around a long time? That doesn't make sense, that's not a sound and coherent legal thought.

0:12:28.8 Peter: It's important to understand what laws regarding religion were like at the time of the founding. The feel-good story about our origins is like Puritans fled England due to religious persecution and the whole ordeal made them realize the dangers of religious oppression and embrace the ideals of freedom of religion and religious pluralism, but the reality is extremely different. The entire State of Rhode Island exists because Roger Williams was accused of heresy and cast out of Massachusetts, executions of Quakers and Catholics were not uncommon in the early colonies, Baptists were jailed for preaching in Virginia. There were states that had state-sponsored religions at the time of the founding and funded those denominations with taxpayer money. New York forbid Catholics from holding office until the early 1800s, and if they had just held out a couple of hundred more years, we wouldn't have to deal with the whole Cuomo thing.


0:13:30.2 Rhiannon: It's stupid.

0:13:32.3 Peter: If you look at other areas of the First Amendment, as we've touched on before, the founding generation passed the Alien and Sedition Act, which allowed for the punishment of people who opposed the Federalist Party, who was in charge of the government... That flies directly in the face of the principles that we think of as under guarding the First Amendment today. There is truly almost no one left standing on the right or the left who can seize their rights to free speech or religion as being as limited as the founding generation seem to. Which is to say that the conservatives in this case and in general, are being deeply selective about what traditions they carry forward into their interpretation of the Constitution. So again, even if you want to build a society around the opinions of people who existed 100 years before germ theory, people like Anthony Kennedy aren't making an honest effort to do that.

0:14:22.6 Rhiannon: Exactly. And Kagan actually brings this up explicitly in dissent, she says that the town of Greece being majority Christian actually makes this situation constitutionally more fraught, because of the purpose of the establishment clause, because of the idea that minority religions have to attend town meetings that are started with a prayer, a show of faith, that they don't participate in.

0:14:50.1 Peter: Taking a step back, the court has blessed this unbelievably haphazard system where the town shows religious speakers using a promotional pamphlet put out by the local Chamber of Commerce, and the court says, Well, that's okay because they weren't purposefully selecting only Christian speakers, even if the output was eight straight years of Christian speakers. Is this really the level of diligence that we are requiring out of our government on this issue? The very first amendment of the constitution imposes this burden on the government not to respect the establishment of religion, and we're claiming that they can meet that burden by picking church names out of a brochure produced by a local chamber of commerce? That's the bottom line here. Like, get the fuck out of here.

0:15:32.3 Rhiannon: And just because that's the way it's always been done.

0:15:34.3 Peter: So let's talk a bit about the dissents and concurrences filed here, 'cause there's a bunch, like we mentioned up top, the jurisprudence around the establishment clause is an absolute mess with no real coherent through line, and the reason for that in broad strokes is that there are two competing philosophies of the establishment clause, first you have the separationists who believe in a true separation of church and state where the government simply cannot do anything to advance or further religion, and the other view is what's referred to as the accommodationist view. They believe that the clause isn't so strict and that the government must take steps to accommodate religion. The court has never really chosen a path, so the precedent is just like a mish-mash of these ideas, there are all these different tests floating around that don't quite align with one another. Rhi mentioned the lemon test in the early '90s, Kennedy made up another one called the coercion test, which he uses here, and it's just like another test that's been invented.

0:16:29.0 Peter: Kagan's dissent lays out what I think is a very persuasive conception of the Establishment Clause. Saying that the goal is to protect minority religions especially, and it imposes a real affirmative obligation on the government to avoid endorsing any religious sect or belief, but she sort of Kagans it as we say, because she gets caught up in all of this jurisprudence and doesn't take that to its logical conclusion, which I think would be overturn Marsh v. Chambers the case from the '80s that said that prayer before our legislative session is acceptable, she won't go that far, and she tries to distinguish the case saying that it's different, and all these little ticky-tack ways. I think her position would have been stronger if she just said, Sorry, but that case was wrongly decided and we need to move on.

0:17:13.5 Rhiannon: Yeah, yeah, and you to go from milk toast, but logical kind of rational dissent to an absolutely batshit concurrence. Let's talk about what Clarence Thomas has to say. Did you read this compearance Peter?

0:17:29.7 Peter: Absolutely. I did.

0:17:30.6 Rhiannon: It is whack-a-doodle.

0:17:32.0 Peter: There's only one opinion in this I didn't read and that's Justice Breyer's dissent. I made it about a half a paragraph in, and I was like, you know what...

0:17:38.0 Rhiannon: Fuck it. Yeah, I'm not gonna do it. I didn't read that one either, but Thomas' is great, it is pure uncut Thomas. So what Clarence Thomas writes separately, just to be utterly coocoo bananas on his own, as one does when one is Clarence Thomas, he says that the establishment clause should have never been incorporated against the states, so there isn't a constitutional question here at all. So remember, listeners that at the time the Constitution was ratified, it did not apply to state governments, it only limited the power of the federal government, so Thomas is saying that the establishment clause still only applies to the federal government, and it's supposed to protect the states from the establishment of a national religion. So if this sounds weird, it's because it deeply is. In Thomas' ideal reality, states would be able to establish a state religion, they would be able to have a state-sponsored church or a certain faith that is state-supported, and the establishment clause would only mean that the federal government could not then turn around and for states to be another religion or be the same religion as each other, any of that... This is federalism, that is Thomas' conception of federalism.

0:18:53.0 Peter: Love our boy. He's all about this until Dearborn, Michigan says that they're an Islamic city.

0:19:00.3 Rhiannon: Right, that's exactly right.

0:19:02.5 Peter: I wanna drill down a bit on how incoherent Thomas's vision of the establishment clause is, 'cause he's been beating this drum for nearly 20 years now, he first put this out there in 2002, and he now has Neil Gorsuch onboard, it seems. So I wanna talk about it. The First Amendment, the entire First Amendment is a single sentence: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or bridging the freedom of speech, or of the press, or the right of the people that peaceably assemble, and to petition the government for a redress of grievances." That's all one sentence.

0:19:37.1 Rhiannon: Yep.

0:19:38.5 Peter: Thomas's position is at the very first part of that sentence about the establishment of religion does not apply to the states, but every other part does. So just look at the clause is relevant to religion: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Thomas believes that despite being part of a single sentence separated only by the word or, one of those clauses applies to the states, and one does not. That is such a plainly ludicrous, incoherent reading of the text that I spent an entire afternoon looking into the scholarship behind this, to try to figure out how he justifies this, and the answer is just through absolutely pseudo-academic bullshit. I don't wanna get into too much detail, but...

0:20:23.0 Rhiannon: Your poor brain, Peter.

0:20:25.4 Peter: Basically the argument is that the establishment clause is intended to divide state and federal power, and therefore should not apply to both state and federal governments, but only to the federal government.

0:20:37.4 Rhiannon: Right.

0:20:38.2 Peter: But there's nothing in the scholarship that adequately explains how it makes any real sense that every single part of the First Amendment applies to state governments except this one. So as a result, you have Thomas coming out and saying that the establishment clause does not apply to states, but then when states try to pass capacity restrictions on churches during Covid, he says, "Nope, the free exercise clause, which is right next to the establishment clause... "

0:21:02.2 Rhiannon: Yeah, same sentence.

0:21:03.2 Peter: "Does as apply to states." In other words, these cranks have jumped through an unreal amount of hoops to square their reading of the Constitution with their desired political outcomes here. There's just no other way to interpret it.

0:21:15.9 Rhiannon: How do you think he came up with this theory? Do you think him and Jenny one night were just like, over drinks, glass of wine, [laughter] just shooting their cuckoo shit at each other?

0:21:26.6 Peter: My honest belief about this is he just pours through the fringe law review articles that no one else reads until he feels like he can grab onto something.

0:21:35.2 Rhiannon: You're right, I think that's it. One argument that Thomas and other conservatives will bring up is that at the time of the founding, at the time that the First Amendment was written, some states in America already had established religions, state-sponsored religions.

0:21:52.5 Peter: Yeah which is true, and we mentioned briefly, but again, the issue with his argument is that he doesn't apply it to the rest of the First Amendment. States also did tons of things that we would now consider to abridge freedom of speech in the press and peaceful assembly and all of that, but he just pretends that that shit is a separate question. It's genuinely bizarre, and I have to say, I don't say this lightly, the worst originalist argument I have encountered to date.

0:22:20.5 Rhiannon: Yeah, yeah, very, very little evidence that supports this, frankly, it's super fringe view.

0:22:27.1 Peter: Yeah.

0:22:28.7 Rhiannon: So then back to the rest of Thomas's concurrence, he makes another point, and this part of the concurrence is joined by Justice Scalia, Thomas refers to that coercion test that Peter just mentioned. He refers to the majority saying that as long as people are not coerced into this religious activity, then there is no constitutional concern, and he takes it a step further. Thomas says that it shouldn't just be psychological or kind of like social coercion, like peer pressure in this kind of religious display that violates the Constitution, but "actual legal coercion". That's the only thing that would violate the Constitution is if somebody is legally coerced into joining into a prayer that isn't of their faith.

0:23:18.8 Peter: Right. And Kennedy sort of adopts this reasoning in part too. The conservatives are basically saying, "Look, it doesn't matter if non-Christian people feel uncomfortable or pressured by the Christian prayer. That doesn't violate the Constitution. They need to really truly have their hand forced for it to matter."

0:23:37.0 Rhiannon: Right.

0:23:39.0 Peter: So Kennedy makes this point and the majority as well, the plaintiffs here are saying, "Well, this was sort of coercive. It has the effect of coercing religious practice by starting off every legislative session with this prayer," and what Kennedy says is, "No, no, no. You just feel uncomfortable, and that's not the same as coercion."

0:23:57.6 Rhiannon: Right.

0:23:58.3 Peter: So what the conservatives have done is sort of just make a very high bar for coercion. They're saying, "Well, we're not talking about these socio-political pressures that are sort of vague or abstract. We're talking about real force. They don't exactly clarify what that might be, but it's very clear that they don't really care about people who are sort of made to feel like outsiders or like they are not participating in the government because of the sort of open embrace by the government of a certain religion.

0:24:27.9 Rhiannon: Exactly, yeah, that's what's egregious is that it's not just that people feel excluded, it's that when the government respects an establishment of religion improperly, people who are not that religion feel that they cannot participate in government, like that you are not a full participant or...

0:24:43.7 Peter: Right, it's not for you.

0:24:44.4 Rhiannon: Right, exactly. You're not fully civically engaging.

0:24:47.8 Peter: When you're the big in group, this is always how you would perceive of it, right? Like...

0:24:53.0 Rhiannon: Right.

0:24:55.7 Peter: "Oh, we're just doing this thing. It's just a ritual. It doesn't mean anything."

0:24:58.3 Rhiannon: This is normal.

0:25:00.5 Peter: "You don't have to feel excluded." But when you're on the outside, you immediately understand that you are not part of the group...

0:25:04.9 Rhiannon: Exactly.

0:25:05.5 Peter: In a significant and material way.

0:25:07.1 Rhiannon: Right.

0:25:07.5 Peter: But they just brush that shit off.

0:25:08.8 Rhiannon: Yeah.

0:25:09.3 Peter: Pretty unsettling concept for anyone in a minority religion.

0:25:13.2 Rhiannon: Exactly, yeah.

0:25:14.3 Peter: So there's a lot going on here. We've mentioned precedent and various legal tests, and I wanna just drill down on this minority religion issue because of at bottom, you have a town consistently embracing Christian prayers, with religious leaders selected out of a fucking brochure, and Kennedy is essentially assuming that the town's process for selecting prayer speakers is religiously neutral and unbiased, and he says, "Well, yeah, Christian speakers are being selected because almost all of the religious congregations in the town are Christian, and there's no evidence that they were disfavoring any other religion." But that seems like a pretty narrow view of what bias actually is and how it manifests.

0:25:55.1 Rhiannon: Exactly, yeah.

0:25:56.9 Peter: For one thing, even if all of the religious congregations in a town are Christian, that doesn't mean all of the people in a town are Christian.

0:26:04.9 Rhiannon: Thank you.

0:26:05.9 Peter: Anyone who grew up in a minority religion will tell you, you often have to travel to go hit up your local congregation.

0:26:13.5 Rhiannon: Absolutely.

0:26:14.9 Peter: And Kennedy notes that there are like a couple of synagogues in nearby, but he says, "Well, they're outside of the town limits," so he sort of waives that off, and it's like, that doesn't mean there aren't Jewish people in the fucking town, dude.

0:26:26.6 Rhiannon: Right, right.

0:26:27.5 Peter: And there are also religious people who don't affiliate with organized religion, right? That you're just spiritual or whatever. And then you have people who don't closely associate with any religious beliefs at all. All of those people are being left out by the town's practice. And Kennedy has very little to say about what their rights are in the context of the Establishment Clause.

0:26:46.0 Rhiannon: Yeah, yeah, that's right. And we should talk, I think, about Kennedy as the majority writer here, and just kind of his dumb stupid legacy on the court. Justice Kennedy famously kind of relished his position as the swing vote on the court for a long time, and in the prevailing public view, I think he was sort of like a great moderator. He's a conservative nominated by President Reagan, it's immediately after the failed nomination of Robert Bork, but he's also proudly, in some ways, not as conservative, not as fringe as Scalia and Thomas and later Alito. But I think in a lot of ways, his votes on gay rights and the death penalty, which for us were correct, are actually a cover for the other areas of law where he really wasn't that great, and this case is a good example, right?

0:27:37.4 Rhiannon: Kennedy ends up being, when you look at his body of work on the Supreme Court, he's a really strong conservative. So even if he wasn't writing and the voice of an absolutely like bat-shit conservative loon on issues, Kennedy, I think often thought that he was moderating himself, but then moderated himself into ultra specific case-by-case analyses that are really obviously untethered to a grounding ideology except for general conservatism, right?

0:28:08.1 Rhiannon: He comes out conservative all the time. So yeah, he did write the majority in Obergefell, which allowed same-sex marriage, he writes the majority in Roper v. Simmons, which said that executing juveniles is unconstitutional, but here in this case, and in Establishment Clause cases, he is consistently accommodation-ist towards religion, and he's also the majority writer in Iqbal in Citizens United. And for all of the news made about his supposed swing vote, that swing vote makes the conservatives a five-person majority in Janus, in Trump v. Hawaii, in Shelby County, in Heller. These are all cases we've done episodes on, meaning they're real bad, right? [chuckle] Even in the case on the Affordable Care Act on Obama Care, it's Robert, not Kennedy, who joins the liberals in upholding the ACA. There's analysis and reporting by 5-38, famously never have gotten anything wrong over there, [chuckle] analysis by those guys that showed that in closed cases, which is defined by cases that were decided by any five justice majority, while Kennedy was on the court, Kennedy voted with conservatives more than 70% of the time. Now, when you compare that with Alito, Scalia and Thomas, they're all voting with conservatives in closed cases at least 80% of the time, but still, over 70% of the time, this is not a moderate, this is a conservative.

0:29:38.5 Peter: He's just marginally less conservative than those guys, and really only on a handful of issues, but they were of such cultural import, gay marriage, et cetera, that he ended up getting a huge amount of credit from the liberals and a huge amount of hate from the right, and it really defined his legacy in a way that's just completely out of whack with how he actually voted.

0:30:00.2 Rhiannon: Yeah, I think that's right. In his last term on the court, he did not side with the liberals in a single closed case. And this professor at Yale, Robert Post, I think put it nicely, he said "In the end, as the last few cases of this term illustrate," he's talking about the last term in which Anthony Kennedy was on the court in 2018, I believe, "in the end, as the last few cases of this term illustrate, the scope of Kennedy's empathies was distinctly limited. He could feel the pain of the devout baker who refused to prepare cakes for same-sex weddings, but he was deaf to the pain of the many Muslims assaulted by Trump's unspeakable rhetoric. Kennedy was always willing to sympathize with business, and his hostility to business regulation or consumer remedies will be one of his major legacies. Kennedy's First Amendment jurisprudence has been expensive and largely thoughtless. I have no doubt, but that in subsequent years, he will be regarded as one of the major architects of the newly weaponized First Amendment, which has now become a platform to launch a Lochner-type attacks on social and commercial regulations."

0:31:04.0 Peter: Yeah just to jump in real quick, by Lochner-type, he's referring to the Lochner era which was this period of time in the early 1900s where so-called contract rights reigned supreme, giving huge benefits to management and employers and corporations at the expense of labor. So he's sort of making this comparison between that era and the modern era of Kennedy's corporatist jurisprudence.

0:31:27.6 Rhiannon: Right. So Kennedy's legacy also extends to the nomination of Brett Kavanaugh, he has a major role, not just that Brett Kavanaugh is the justice who replaces Anthony Kennedy and takes his seat, but his role in the actual nomination of Brett Kavanaugh, getting Brett Kavanaugh's name on Donald Trump's shortlist, his role in that belies, if not Kennedy's total endorsement of the conservative movement under President Trump, then his detached approval of it at least, right? He's 81 when he retired in 2018, so he's plenty old, and nobody's saying he should stay on the court or whatever, but there were reports that Kennedy had personally spoken to President Trump about his plan to retire and who he wanted to replace him, reports that Kennedy had said that he wanted somebody who was in the Federalist society, and that Kennedy personally named Brett Kavanaugh, one of his favorite former clerks, to be on the shortlist and that that would make him comfortable enough to announce his retirement.

0:32:28.8 Peter: Huh, okay, interesting. Very moderate thing to do. It's...

0:32:33.1 Rhiannon: Real moderate guy.

0:32:34.8 Peter: Super cool to be the deciding vote to legalize gay marriage nationwide, and then just handed the keys to someone you know opposing it.


0:32:44.4 Rhiannon: Right, right, it's nonsensical. Yeah.

0:32:45.9 Peter: He really cares. He really cares.

0:32:47.7 Rhiannon: Thoughtless, thoughtless piece of shit.

0:32:49.4 Peter: So, we've touched before on these sort of competing conceptions of the Establishment Clause and the First Amendment's treatment of religion in general, the First Amendment has two religion clauses. The first allows for the free exercise of religion by citizens, and the second says that the government shall not respect any establishment of religion. I think that the most reasonable way to view those clauses is that they are two ways of reaching the same goal, religious freedom for the citizen, right? You're free to exercise your own religion and also free from the coercive socio-political forces created by the government's establishment or endorsement of religion, and that means a government that disengages from religious institutions.

0:33:32.0 Peter: One of the hallmarks of conservative jurisprudence on the establishment clause is that they say "No, it doesn't require the government to disengage from religious institutions, it requires them to treat religious institutions as if they would treat any other institutions," which I think has some intuitive appeal, but in practice, results in government engaging primarily with powerful established religious institutions, and thereby undermining the purpose of the Establishment Clause by advancing the causes of some religions more than others. Religious institutions will often seek government funds, for example, but of course, the funds will not be distributed evenly across all religious beliefs, right?

0:34:10.7 Rhiannon: Right.

0:34:11.2 Peter: They end up disproportionately with large and powerful religious institutions, and of course, exclusively with organized religion.

0:34:17.8 Rhiannon: Right.

0:34:19.2 Peter: And so the end results of the conservative view of the Establishment Clause, just like the end results of all reactionary politics, is the reinforcement and reproduction of hierarchy. And you see that here, right? You see Kennedy pretending that this is a non-biased system, even though it utilizes channels that will inevitably result in majority establishment religions being perpetuated as the dominant political and cultural force.

0:34:48.1 Rhiannon: Exactly.

0:34:49.6 Peter: One of the weird parts of establishment clause jurisprudence is that we essentially know from modern conservative politics that they simply do not believe in the separation of church and state, even conceptually, right? They believe in a Christian government. You've got Trump clearing out Lafayette Square with riot police and then holding up a Bible, every Republican politician of any note touting the Christian roots of our country in all of their fucking speeches.

0:35:15.7 Rhiannon: Right.

0:35:16.5 Peter: And so even if you think that the conservatives on the court are a little more principled in that, that's where the conservative side of the Overton Window is.

0:35:24.0 Rhiannon: Yes.

0:35:24.6 Peter: When a view is that popular and powerful among conservatives, it has a gravity to it, and no matter how principled the right-wing of the court thinks they are, they're going to get pulled towards that view over time.

0:35:35.3 Rhiannon: Absolutely.

0:35:37.5 Peter: The legal academic wing of conservatism is designed to provide ex-post legal justifications for conservative political positions. So it sort of necessarily lags behind the mainstream reactionary politics. So when you see a mainstream political position considerably to the right of the conservatives on the court, I would expect that gap to close over time. That's why I find this line of jurisprudence particularly unsettling because it seems to me like there is a lot of space to move right.

0:36:06.0 Rhiannon: Yeah.

0:36:09.7 Peter: And I don't see anything in the way of them doing it, right?

0:36:10.9 Rhiannon: Right, and that's scary.

0:36:12.7 Peter: And you have the moderates like Kennedy not too far off from the total nut job side and Thomas.

0:36:19.4 Rhiannon: That's right.

0:36:20.4 Peter: And I find that a little bit unsettling, and I would anticipate that over the next five to 10 years, this area of the law gets considerably worse.

0:36:31.0 Rhiannon: Yeah.

0:36:32.9 Peter: This was a good holiday season episode, I think. This makes a lot of sense for us.

0:36:35.3 Rhiannon: I think so too. We're Grinches.


0:36:39.0 Peter: I personally, I will say this, I love the general holiday spirit in New York City around December. I like seeing wreaths everywhere, I like big Christmas trees everywhere, menorahs in windows, all that shit. It just gets me vibing. I feel good about it. So I'm not a total Grinch. I get with that shit.

0:36:58.7 Rhiannon: Okay, move to Greece, move to Greece then.

0:37:01.2 Peter: Move to Greece, New York. [laughter] I can't imagine what it's like up there. Probably fucking sucks 'cause it's right near Rochester, and that's the worst part of this country. [chuckle]

0:37:09.7 Rhiannon: The accents alone, I'm sure, are absolutely unbearable.

0:37:14.2 Peter: I wish we had Rachel to just do an impression on pod.

0:37:17.3 Rhiannon: Yeah. Uh-huh. She's real good at it.

0:37:19.7 Peter: I had that one ex from Upstate and you meet these... I remember dreading the idea of her garbage dump parents meeting my family.

0:37:28.8 Rhiannon: Oh yeah.

0:37:30.2 Peter: I've only really dated Jewish girls, and Jewish parents on average, pretty chill about the fact that my dad's from Iran and we're like liberal and shit.

0:37:39.2 Rhiannon: Yeah, yeah, pretty open. Yeah.

0:37:40.6 Peter: But this was my first experience with asshole wasps. They would just get drunk and rant about gay marriage and just say racist shit.

0:37:50.4 Rhiannon: Oh god.

0:37:50.5 Peter: And I was like, "These people might be in my wedding?" [chuckle]

0:37:55.1 Rhiannon: Yeah. [laughter]

0:37:56.4 Peter: "I don't think I can do this."

0:37:58.0 Rhiannon: Right. [laughter]

0:38:00.7 Peter: Alright, we're calling it, folks.


0:38:03.5 Rhiannon: Call it.

0:38:04.4 Peter: Next week, one more episode before the holidays, folks, and in the holiday spirit, you will pay for a premium episode if you wanna hear it.


0:38:17.5 Rhiannon: Just like baby Jesus wanted.

0:38:19.1 Peter: It's gonna be worth it because we're doing a sort of optimistic episode in a way...

0:38:24.3 Rhiannon: Yes.

0:38:25.0 Peter: About the Warren court. We're gonna run through all the good shit that happened back in the day when Earl Warren was in charge.

0:38:32.5 Rhiannon: Yeah.

0:38:35.5 Peter: It's gonna be good. We'll see you next week. If you're not a premium subscriber and aren't gonna subscribe, then we'll see you next year, baby.


0:38:41.5 Peter: Enjoy your holiday season. We still like you. Follow us on Twitter at @fivefourpod, subscribe to our Patreon,, all spelled out, premium episodes, access to a Slack, all sorts of shit. Subscriber events, forgot about those.

0:38:56.8 Rhiannon: Come annoy Peter in the Slack.

0:38:56.9 Peter: Yeah.

0:38:58.1 Rhiannon: Those are my favorite subscribers. [chuckle]

0:39:01.1 Peter: We'll see you next week.

0:39:03.8 S?: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.


0:39:24.8 Rhiannon: Oh, my favorite tweet ever, my favorite tweet ever, I think this is verbatim, is "Fuck the Constitution, dirty-ass yellow-ass, torn-ass piece of paper." [laughter] It's so good.

0:39:43.2 Peter: I hate when you see something like that and it's like someone just distilled our entire podcast into a tweet and you're like, "Fuck!"