The Mystery of John Roberts
In November 1991, the Supreme Court heard argument in Lee v. Weisman, on the question of whether a prayer recited by a member of the clergy at a public high school graduation violated the constitutional separation of church and state. The vote after argument was 5 to 4 to allow the prayer. Chief Justice William H. Rehnquist gave the opinion-writing assignment to Justice Anthony M. Kennedy.
Some months later, Justice Kennedy sent a note to Justice Harry A. Blackmun, the senior justice on the dissenting side. He had changed his mind, Justice Kennedy said; the argument against allowing the prayer was the better interpretation of the First Amendment’s Establishment Clause. Justice Blackmun, now the senior justice in the majority, had the prerogative of reassigning the opinion. He told Justice Kennedy to keep writing.
When the 5-to-4 decision to prohibit graduation prayers was finally announced on June 24, 1992, it was huge news. From today’s perspective, it may not sound like a big deal. But Lee v. Weisman was one of the hot-button cases of the 1991 term, perhaps second only to Planned Parenthood v. Casey, the abortion case that challenged the continued validity of Roe v. Wade.
President George H. W. Bush was running for re-election, and having put both David H. Souter and Clarence Thomas on the Supreme Court, he was eager to show the religious right that he was the rightful heir of his predecessor, Ronald Reagan. His solicitor general, Kenneth W. Starr, made the unusual move of filing a brief asking the court to take the case, even though as a legal matter the federal government’s interest in the outcome was far-fetched. As an administration official explained to me at the time, the strategy was to provide a vehicle for Justice Souter to declare himself lowering the church-state barrier (a profound misjudgment of this Yankee Republican, who voted with the majority).