I’m wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side.
The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.
Would that be permissible?
—Justice Elena Kagan
In Town of Greece v. Galloway, the Supreme Court is considering what may become a landmark decision on the constitutionality of prayers at town council meetings. At oral argument, Justice Kagan began by asking the question quoted above raising the hypothetical of whether an obviously Christian prayer (similar to the ones actually at issue in the case) would be allowed at the start of a Supreme Court session. The lawyer for the town fumbled the question (the answer is probably no), and for the next sixty minutes it seemed like the Justices would have preferred to be doing almost anything other than deciding this case. In fact, towards the end of the argument, Justice Kagan uttered the following sobering and depressing comments: “Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”
For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution. As early as 1798, Justices Chase and Iredell differed over whether Supreme Court Justices should employ natural law principles to decide the cases before them. Almost one hundred years later, James Bradley Thayer argued for greater judicial deference to political institutions by suggesting that judges should invalidate decisions by the elected branches only when those decisions were clearly inconsistent with unambiguous constitutional text. In the 1960’s, Alexander Bickel wrote of the “counter-majoritarian difficulty,” spawning hundreds of law review articles written by the legal academy’s most esteemed scholars trying to justify decisions such as Brown v. Board of Education, Baker v. Carr, and Roe v. Wade against the charge that the rights protected in those cases could not be gleaned through constitutional text and history. And in 1975, Thomas Grey wrote his seminal article Do We Have an Unwritten Constitution?, which helped spark a volume of responses on this question from eminent scholars on both the left and the right. Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution. Given my inclination to agree with Professor Tribe’s politics, and in light of his substantial reputation as a teacher, scholar, and constitutional litigator, it would be wonderful to report that his new book adds to the considerable literature on this subject. Unfortunately, The Invisible Constitution fails to advance the debate.