The Supreme Court 1997

To help the reader understand the background of the following commentaries, we asked Robert P. George of Princeton University for a brief summary of the 1996-97 cases related to questions of morality and religion. Herewith his pulling together of the pertinent facts. His own commentary appears later in the symposium.
—The Editors

The first key decision of the Supreme Court’s most recent term was Agostini v. Felton, handed down June 23, 1997, concerning the proper interpretation and application of the First Amendment’s prohibition of laws “respecting an establishment of religion.” Since 1947, the Court has held that this “establishment clause” forbids government aid to religion. And so with Aguilar v. Felton in 1985, the Court halted a New York City program that sent public school teachers into religiously sponsored private schools to provide congressionally mandated remedial education to disadvantaged children. The effect was to force schools across the nation to locate, at great expense, remedial programs at public schools or in vans parked outside religious schools.

Aguilar became an emblem of the Court’s “strict separationist” interpretation of the First Amendment. By 1994, however, a majority of Justices had indicated their willingness to reconsider the ruling, and with Agostini, New York revived the case—winning, in a 5-to-4 decision, a reversal of Aguilar. The Agostini majority did not question the general ban of aid to religion, but they argued, in an opinion by Sandra Day O’Connor, that providing remedial education for parochial students in purely secular subjects does not constitute such aid. O’Connor repudiated Aguilar‘s presumption that the presence of public employees at parochial schools “inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” O’Connor further rejected the idea, central to Aguilar, that an excessive entanglement of church and state arises either from the need to “monitor” public school teachers to ensure that they do not inculcate religion or from the “administrative cooperation” necessary when public school teachers work in a parochial school setting. The four dissenting Justices (David Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer) insisted that Aguilar had been rightly decided and that nothing in law or fact had changed to authorize a reconsideration of the case. Though Agostini does not decide the further question of the constitutionality of publicly funded vouchers to enable students to attend religiously affiliated schools, it seems to strengthen the case in favor of such programs.

In the second and third key decisions, Washington v. Glucksberg and Vacco v. Quill, handed down June 26, 1997, the Justices unanimously rejected claims that state laws forbidding assisted suicide violate the Fourteenth Amendment’s guarantees of “due process” and “equal protection.” Chief Justice William H. Rehnquist, delivering the opinion for the Court in both cases, denied that the Constitution contains a “right to die.” Antonin Scalia, Clarence Thomas, and Anthony Kennedy joined the Chief Justice’s opinions. O’Connor joined these opinions as well, but filed an additional concurring opinion in each case that Ginsburg and Breyer joined in part. Breyer also filed separate concurring opinions, as did Souter and Stevens.

In Glucksberg, the Ninth Circuit Court of Appeals invalidated a Washington State prohibition of assisted suicide. Invoking the “mystery passage” from the 1992 abortion case of PlannedParenthood v. Casey—“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—Judge Stephen Reinhardt reasoned that constitutional liberty includes the right of terminally ill persons to have a physician’s assistance in ending their lives. Rejecting this view, however, Rehnquist argued that the language from Casey had not declared an all-purpose right to do as one pleases but merely described “those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.” A study of history and tradition, Rehnquist suggested, reveals that suicide, and certainly assisting in suicide, have always been considered legitimate objects of state prohibition. Moreover, the interests asserted in prohibiting assisted suicide—preserving life; maintaining the integrity of the medical profession; protecting the poor, elderly, disabled, and other potential victims of prejudice and abuse; and avoiding the slippery slope to euthanasia—easily meet the basic due process requirement that laws have a “rational basis.”

In Quill, the Second Circuit Court of Appeals—though explicitly rejecting the “due process” claims on which the Ninth Circuit relied in Glucksberg—held that a New York law against assisted suicide violated the Fourteenth Amendment’s “equal protection” clause. The Second Circuit claimed that New York lacked a rational basis for, on the one hand, permitting terminally ill patients to demand the removal of life support systems, while, on the other hand, forbidding terminally ill patients to obtain a physician’s prescription for lethal drugs. In reversing the Second Circuit, Rehnquist argued that the distinction between committing suicide and removing life support or administering painkilling drugs with the side effect of shortening life is perfectly rational—the latter consistent with the physician’s ethical mandate never to kill, while (quoting medical ethicist Leon Kass) a doctor who assists a suicide “must, necessarily and indubitably, intend primarily that the patient be made dead.”

Concurring in the result in Glucksberg and Quill, Justice Stevens stated that the Court’s denial of a categorical right to commit suicide does not imply that all state statutes forbidding assisted suicide are constitutional. Noting that Washington’s death penalty means that the state’s commitment to the sanctity of life “does not require that it always be preserved,” Stevens asserted that the state “must acknowledge that there are situations in which an interest in hastening death is legitimate.” “Indeed,” he added, “not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection.”

Also concurring in the result, Justice Souter defended “substantive due process,” a doctrine that the Supreme Court has invoked in some of its most controversial cases: Dred Scott v. Sandford (1857), denying the power of Congress to restrict slavery in federal territories; Lochner v. New York (1905), invalidating state limitations on the number of hours industrial laborers could be required or permitted by their employers to work; and Roe v. Wade (1973), nullifying the abortion laws of fifty states. Though substantive due process has been severely criticized as a pretext for the judicial usurpation of legislative authority, Souter argued for a “non-absolutist” doctrine that calls for courts to “stay their hands” in circumstances in which legislatures demonstrate the “institutional competence” to handle an “emerging issue” such as assisted suicide. But he held out the possibility of the Court later finding a right to assisted suicide: “While I do not decide for all time that respondents’ claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time.”

The fourth key decision, City of Boerne v. Flores, reached June 25, 1997 by a vote of 6-to-3, invalidated the Religious Freedom Restoration Act (RFRA), passed by overwhelming majorities in both houses of Congress in 1993. Certain constitutional standards—standards that governments were required to meet in cases where laws, though religiously neutral and general in their applicability, impinged upon the religious freedom of citizens—had been removed by the Supreme Court in the 1990 Smith decision. In response to Smith, a broad coalition lobbied the Congress to protect the free exercise of religion, and the result was RFRA’s restoration of the requirements that laws adversely affecting religious practice be (1) supported by a “compelling state interest” and (2) employ the “least restrictive means” of achieving that interest.

The Boerne case arose when St. Peter’s Catholic Church in Boerne, Texas, was denied a construction permit on the grounds that the church is subject to the City’s Historic Landmark Commission. In response to the church’s lawsuit under RFRA, the city asserted that RFRA was an unconstitutional imposition upon legitimate state and local authority.

Invoking its power under Section 5 of the Fourteenth Amendment “to enforce, by appropriate legislation” that Amendment’s substantive guarantees of due process, Congress sought with RFRA to restore the broader protections for religious freedom that the Court had abandoned in Smith. Writing for the majority in Boerne, Justice Kennedy argued that Section 5 enforcement power is merely “remedial”—Congress not being given the power to decide what substantive rights people have under the Fourteenth Amendment or what actual restrictions that Amendment places on the states. Its authority limited to enacting laws to remedy constitutional violations where the courts have determined they exist, Congress may not, under its own understanding of free exercise, require the states to meet a compelling interest standard before passing laws of general applicability that may burden religious practice.

In a concurring opinion, Justice Scalia, the author of Smith, defended his claim that the framers and ratifiers of the First Amendment did not intend to create “conduct exemptions” for religious believers. Justice Stevens, who joined Scalia’s concurrence, also filed a separate concurring opinion (in which no other Justice joined) making the claim that RFRA was unconstitutional as a violation of the First Amendment’s prohibition of laws respecting an “establishment of religion.”

Justice O’Connor, the Court’s leading critic of the Smith case, dissented in Boerne on the ground that the majority’s use of Smith “as a yardstick for measuring the constitutionality of RFRA” was misguided, since Smith itself should be reconsidered. On the central question at issue in Boerne, however, she expressed agreement with the majority’s claim that Congress’ enforcement authority is remedial rather than substantive. “If I agreed with the Court’s standard in Smith,” she wrote, “I would join the opinion.” This left only Justices Breyer and Souter open to the possibility that congressional power under Section 5 is more than merely remedial. And neither actually asserted substantive congressional power or made an effort to rebut Kennedy’s argument against such power. They argued merely that Smith should have been reconsidered and the question of Congress’ power under Section 5 put off to another day.

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Robert P. George

By votes of 9-0 in Glucksberg and Quill the Supreme Court rejected claims to a constitutional right to assisted suicide. Commenting on these decisions in the New York Times, Jeffrey Rosen, legal affairs editor of The New Republic and one of our nation’s most astute commentators on judicial politics, argued that the conservative assault on liberal judicial activism has finally won the day. Legislators, not judges, should decide controversial questions of social policy. The judges have thrown in the towel. The era of judicial tyranny, like that of “big government,” is over. So it’s time for opponents of the judicial usurpation of politics to break out the champagne, right?

Wrong.

The devil, as usual, is hiding in the details. True, Chief Justice Rehnquist, in opinions joined by Justices Scalia, Kennedy, Thomas, and (somewhat unsteadily) O’Connor, did a fine job of identifying the “state interests” justifying laws prohibiting assisting in suicide. Moreover, Rehnquist’s opinion in the Quill case elegantly demolished attempts by proponents of assisted suicide and euthanasia—including a group of notable academic philosophers who offered the Justices guidance in a highly publicized amicus curiae brief—to equate suicide or assisting in suicide with the refusal or removal of life-support systems.

Even the Rehnquist opinions, however, contained disappointing features. Chief among these was the failure to repudiate the infamous “mystery passage” from the 1992 decision in Casey, which established “lifestyle liberalism” as a sort of state religion to be enforced by federal judges. The Justices’ failure in the assisted suicide cases to expel the mystery passage from our constitutional law leaves the Court’s ruling in the Glucksberg case intellectually insecure. Judge Reinhardt, in his opinion for the Ninth Circuit, invoked the passage (and, more generally, the Casey analysis of “abortion rights” of which it was the linchpin) in striking down Washington’s prohibition of assisting in suicide. Although Reinhardt’s opinion had many flaws, his claim that the logic of Casey was “highly instructive,” and, indeed, “almost prescriptive” for identifying a powerful “liberty interest” in the “choice to commit suicide,” was far from implausible. That claim is not refuted, in fact it is scarcely engaged, by Rehnquist’s explanation of the mystery passage as a mere “description” of the Court’s previous discoveries of personal autonomy rights in the Fourteenth Amendment. After all, the mystery passage was offered in Casey itself not as a description of anything, but as a justification for the Court’s invention of a constitutional right to abortion in Roe v. Wade.

By treating the language from Casey as a (more or less adequate) description of previous rulings, rather than as a (truly lousy) justification for those rulings, Rehnquist leaves the mystery passage in the condition of a vampire in its coffin—inactive in the light of day yet capable of rising in the night to do untold mischief. If, in a few years, a Court filled with liberal appointees revisits the question of assisted suicide (or embarks on some new constitutional adventure, such as striking down laws forbidding the cloning of human beings), you can bet that the Justices will base their newly discovered rights on the discovery in Casey—by Reagan appointees O’Connor and Kennedy and Bush appointee Souter—of the constitutional right of autonomous individuals to manufacture their own moral universe.

No doubt Rehnquist is aware of all this and would gladly have driven a stake through the heart of the mystery passage had the matter simply been up to him. The difficulty he faced, one suspects, is that he did not wish to alienate O’Connor and Kennedy, whose votes were required to form a majority for his opinion. So the Chief Justice did the best he could to get them on record in an opinion which interpreted that passage as narrowly as possible. Still, the failure of the Court (and, indeed, any of the individual Justices) to repudiate the mystery passage constitutes something worse than a missed opportunity.

Now for the really bad news. The unanimous votes in Glucksberg and Quill mask a division of opinion among the Justices that could easily result in the overruling of these cases within a few years. Four of the most liberal Justices—Stevens, Souter, Ginsburg, and Breyer—declined to join Rehnquist’s opinions for the Court. It is hardly a stretch to suppose that some, if not all, of these Justices declined to manufacture a constitutional “right to die” not out of conviction that it would be an abuse of judicial authority for them to invent such a right, but merely because they perceived that the prevailing circumstances are not propitious for a bold new act of judicial imperialism.

Indeed, a careful reading of the concurring opinions reveals that at least two, and possibly all four, of the liberal Justices joined the decision on merely prudential grounds. This means that the replacement of a single conservative or moderate Justice by a liberal appointee could result in a 5-4 decision reversing Glucksberg and Quill and creating a right to assisted suicide.

Ruth Bader Ginsburg joined in the judgments with the single sentence: “I concur in the Court’s judgments in these cases substantially for the reasons stated by Justice O’Connor in her concurring opinion.” But O’Connor’s reasons are themselves less than clear. She explains that she joined the Chief Justice’s opinion for the Court because she agrees that there is no “generalized” right to commit suicide. Might she be willing to find more limited constitutional rights to suicide and assistance in suicide for specific persons or classes of persons in particular circumstances? The parties challenging the state prohibitions of assisting in suicide thought that they were placing before the Court precisely the question whether “mentally competent individuals who were terminally ill and suffering great physical and/or emotional pain” had a right to “control the circumstances of their deaths.” Remarkably, however, O’Connor saw “no need to reach that question.” The best explanation for this, I think, is that O’Connor, while providing the crucial fifth vote for the Rehnquist opinion, employed the time-tested device of a concurring opinion to give herself and members of a future Court wriggle room to invent a “right to die” at some later date. And Justice Ginsburg seems to find that little arrangement perfectly congenial.

Justice Ginsburg’s fellow Clinton appointee, Stephen Breyer, also announced his substantial agreement with O’Connor. His own opinion opens by declaring that O’Connor’s opinion has “greater legal significance than the Court’s opinion suggests.” Disagreeing with Rehnquist’s characterization of the right being claimed as “a right to commit suicide with another’s assistance,” Breyer would consider “a different formulation, for which our legal tradition may provide greater support”—one that would “use words roughly like a ‘right to die with dignity.’“ “I do not believe,” he adds, “that this Court need or now should decide whether or not such a right is ‘fundamental.’“ More wriggle room.

John Paul Stevens went still further, writing an opinion concurring in the judgment that was, for all intents and purposes, a dissent. Indeed, he expressed the conviction that there are times when the “interest in hastening death” is not only “legitimate,” but “entitled to constitutional protection.” It is hard to read Stevens’ opinion as anything other than a promise to vote for a right to die should the issue come before the Court again.

The same is true, I think, in the case of David Souter. On its face, Souter’s opinion seems chiefly concerned to protect the doctrine of “substantive due process” from erosion, arguing that the Justices’ decision not to create a right to assisted suicide should not be construed as a waiver of their authority to create lifestyle or “autonomy” rights—including a right to assisted suicide—in the future. As to why the Court shouldn’t do it now, Souter notes that scholars disagree as to whether, for example, the regime of assisted suicide in the Netherlands has degenerated into the nightmare of “non-voluntary” euthanasia. (The truth, of course, is that honest and informed scholars agree that it has degenerated into precisely that nightmare. But never mind.) Given the complicated and uncertain practical and sociological questions, Souter reasons that states should be left free for now to “experiment” with prohibitions of assisted suicide (as in New York, Washington, and most other states) or its permission (as in Oregon). After a proper period of democratic experimentation, Souter suggests, the Court can decide whether it is satisfied with the way state legislators have handled the question, and, if not, revisit the question of a constitutional right to assisted suicide.

One might innocently suppose that the Constitution either contains a right to (or against) assisted suicide, in which case the Justices should announce the discovery of such a right, or it does not, in which case they should simply leave the matter to the political process. But in the mind of liberal judicial activists, things are never quite that simple. For now, according to Justice Souter, legislatures are institutionally more competent than courts to decide whether to install a regime of assisted suicide. “The Court should, accordingly, stay its hand to allow reasonable legislative consideration.” Still, he pointedly reserves the right of the judiciary to step in at some point in the future if legislatures fail to do (or do quickly enough) what the Justices consider to be the right thing: “I do not decide for all time that respondent’s claim [to a right of assisted suicide] should not be recognized.”

Defenders of self-government—not to mention the sanctity of human life—should certainly cheer the results in Glucksberg and Quill. For now, the people retain their power to protect human life. The vampire is in its coffin. We should not, however, join Jeffrey Rosen and others in proclaiming the demise of liberal judicial imperialism. The judges have not “gotten the message.” The battle against the judicial usurpation of democratic political authority is far from over. Indeed, it has barely begun.

Our “robed masters” will not reliably restrain themselves until they meet firm resistance from the people and their elected representatives and executive officers. For now, the Court’s liberals will bide their time, satisfying themselves with the project of shoring up their many past victories. In this cause, they will sometimes have O’Connor, sometimes Kennedy, and sometimes both, to assist them. If one of these Justices, or one of the conservatives, dies or retires, and is replaced by a liberal, well, keep your doors and windows locked, and a cross close at hand.