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Elena Kagan and the Supreme Not-A-Court

FILE – Bremerton assistant football coach Joe Kennedy, obscured at center in blue, is surrounded by Centralia High School football players as they kneel and pray with him on the field after their game against Bremerton on Oct. 16, 2015, in Bremerton, Wash. After losing his coaching job for refusing to stop kneeling in prayer with players and spectators on the field immediately after football games, Kennedy will take his arguments before the U.S. Supreme Court on Monday, April 25, 2022, saying the Bremerton School District violated his First Amendment rights by refusing to let him continue praying at midfield after games. (Meegan M. Reid/Kitsap Sun via AP, File)

The Supreme Court is supposed to decide questions based on the law, not public opinion. Yet its power consists solely in its ability to issue pieces of paper, which have no effect unless other officials, the ones with guns and money, respect it and are willing to enforce its decisions. 

Justice Elena Kagan and Chief Justice John Roberts have been having a public conversation about whether the Court is jeopardizing its legitimacy for reasons that go beyond mere disagreement with results. Recent revelations about a decision last June, declaring that a high school football coach had a right to publicly pray on the field, show that Kagan is right: The Court has a deep problem.

The Court’s position on a range of issues increasingly mirrors the average Republican voter’s. Perhaps not coincidentally, the public’s confidence in the Court has plunged, to the lowest point in the history of polling. Roberts was evidently responding to this when he said that “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Implicitly answering him, Kagan explained why concerns about legitimacy are, well, legitimate. But her explanation was so diplomatically worded and abstract that it will be easier to understand her if we focus on one example.

So consider a case that the Court described thus: “Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks.” It declared that his rights had been violated, and directed the trial court to order his reinstatement. It took the opportunity to upend some major rules of establishment clause law, notably relaxing the rule against teacher-led school prayer.

Everything in the sentence I just quoted was false, and the Court knew or should have known that it was false. He didn’t lose his job: he was offered an “accommodation that would allow him to pray after games away from his players,” which he rejected; he was put on paid leave; when his contract expired in the spring, he “did not reapply to coach the following year.” He did not “pray quietly by himself” on the field. He was surrounded by a crowd that he had brought there. He pressured his players to join him, leading some parents to complain.

Kennedy’s attorney, former Solicitor General Paul Clement, made an extraordinary misrepresentation of the facts when he stated, at the very beginning of his argument, that “The record is clear that Coach Kennedy was fired for that midfield prayer.” Justice Samuel Alito repeated that claim six times, until the school’s lawyer corrected him: “It’s not a question of firing, and in fact, he was put on paid leave.”

The school district claimed that the case was moot because Kennedy had left town and relocated to Florida. He responded that he had moved temporarily for family reasons.  “If the U.S. Supreme Court were to grant me the only relief I have ever sought from the beginning – to be able to return to the sidelines as a football coach at Bremerton High School – I would be back in Bremerton as soon as a plane could take me there.”

That has turned out to be false as well. The school district complied with the Supreme Court’s command by offering him the contract renewal that he had not applied for. A spokesperson for the school said, “He’s had the paperwork for his reinstatement since August 8, and we haven’t gotten so much as a phone call.” Instead, he has become a sort of professional martyr, traveling around the country telling conservative Christian groups how he has been persecuted.

Speaking at Northwestern Law School (disclosure: I teach there and was in the audience) recently, Kagan explained (again, in very general terms) that “acting like a court” required three things above all else: “The first is [that] the court abides by precedent, except in unusual circumstances. … If new members of a court come in, and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown or are being replaced, then people have a right to say, ‘What’s going on there? That doesn’t seem very law-like.’” 

Second is “to have methodologies that constrain you and to apply those methodologies consistently.” Third is “not to do what’s more than you have to.” Otherwise, the Court “just looks like it is spoiling for trouble.”

She didn’t name specific cases, though it is easy to think of examples. But the new revelations show that the Kennedy case exhibits all three of the vices she describes. 

One of the most fundamental legal methodologies is the law of standing, which all the judges in the Kennedy majority recently insisted upon: A court shouldn’t decide a case unless there is some real controversy, not a fake dispute invented in order to get a court to make a legal pronouncement. 

Yet Kennedy’s grievance was that he hadn’t been rehired for a job for which he never applied. And the Court knew that. It ignored evidence that he was distorting the facts of his case. Precedent was trashed; normal rules were ignored; the Court reached out to make pronouncements that were far broader than even its mistaken account of the facts called for. And the Kennedy case is part of a much larger program of distorting the law of religious liberty.

Roberts is right that American democracy depends on respect for courts. But the courts have to act like courts. This Supreme Court is something else: a wielder of power that is increasingly constrained by nothing. Perhaps we should call it the Supreme Not-A-Court.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, forthcoming).  Follow him on Twitter @AndrewKoppelman.

Tags Chief Justice John Roberts Elena Kagan Elena Kagan John Roberts religious liberty Samuel Alito Supreme Court approval rating Supreme Court politics US Supreme Court
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