Constitutional cases sometimes grow out of the great affairs of state. Think of Bush v. Gore, where the Supreme Court stepped in to resolve the presidential election. But small quarrels can sometimes grow unexpectedly into legal landmarks.
Al Smith and Galen Black were drug counselors at a small private rehabilitation agency in Roseburg, Ore. Black, a white man, had become interested in Native American religious ceremonies using peyote. In 1983, at a Native American Church ceremony, he ate a small amount of the peyote sacrament. His bosses fired him as soon as they found out; and they warned Smith that the same thing would happen to him if he ate peyote.
Smith was a Klamath Indian, an elder and a recovering alcoholic with 25 years of sobriety and a national reputation for his work with Native American alcoholics and drug addicts. He had known about the Native American Church for many years, and, like many authorities in the field, he believed it helped Native American people stay sober. The agency's attitude seemed disrespectful to him. So he took up the challenge and ate peyote at a meeting. The agency fired him, too -- and when he and Black applied for unemployment compensation, his superiors told the state to deny it, because the two men had been fired for "misconduct."
Black and Smith sued, and the case went to the Supreme Court for the first time in 1987. Everyone expected the court to deal with the issue in the context of a famous case called Sherbert v. Verner, in which the court under Chief Justice Earl Warren had held that a state could not deny unemployment compensation to a person thrown out of work for following religious beliefs. Sherbert seemed to lay out a clear legal standard -- government could not override religious concerns unless its action was necessary to achieve a "compelling interest."
But the court was undergoing an unpredictable process of change. One justice, most observers agreed, was the key to what the court would become -- Associate Justice Antonin Scalia. In the case of Employment Division, Oregon Department of Human Services v. Smith, he played the key role in transforming an obscure, small-stakes dispute over unemployment compensation into a landmark case that reversed nearly 50 years of judicial decisions and slapped tough new limits on the exercise of religious freedom.
In Bush v. Gore, many observers were stunned by the conservative majority's willingness to intervene aggressively on behalf of George W. Bush. But the course of the case bore an almost eerie resemblance to that of Smith 10 years before. And the justice who boldly took the helm in both cases was the man who has asserted himself as the right-wing majority's chief ideologist: Antonin Scalia.
Since the early days of the Warren Court in the '50s, American conservatives had made "capturing" the court a top priority. Richard Nixon, during his six years in the White House, appointed conservatives to the bench, but their behavior disappointed the right. When conservatives swept to power in 1980, they vowed not to let it happen again. It was 1986, however, before the Reagan counterrevolution on the court began in earnest.
In May of that year, Chief Justice Warren Burger announced that he was retiring. To replace Burger, President Reagan named Associate Justice William H. Rehnquist. For a decade and a half, Rehnquist had been a lonely figure on the court's right fringe. Now Rehnquist -- a genial Westerner whose gentle, almost shy manner contrasted sharply with the ferocity of his views -- would have a chance to shape a conservative majority for a generation to come. But if the counterrevolution was to succeed this time, he would need an ally -- a thinker and persuader. By moving Rehnquist to the top spot, Reagan opened up an associate justiceship to be filled by a conservative playmaker.
Ever since Reagan's election, it had been assumed that the president had someone in mind for this job -- Robert H. Bork, the brilliant, voluble former solicitor general who had become a leading spokesman for judicial conservatism. So it came as something of a surprise when, instead of Bork, Reagan named Antonin Scalia, another judge on the U.S. Court of Appeals for the District of Columbia Circuit, to take the vacancy left by Rehnquist's elevation.
In 1986, Scalia (friends called him by his childhood nickname, "Nino") was 50 years old. He had grown up in Trenton, N.J., and Queens, N.Y., the son of a Sicilian immigrant who had been a professor of Romance languages, and who saw to it that his only child received a rigorous Catholic education. Nino attended an elite church-run military prep school in Manhattan, and then went to Georgetown. He impressed teachers and classmates alike with his intelligence (he was No. 1 in both his high school and college classes), his self-assurance and his devotion to Catholic orthodoxy. One of his classmates later told a reporter that even at the age of 17, Scalia was "an archconservative Catholic. He could have been a member of the Curia."
Scalia became head of the Justice Department's Office of Legal Counsel during the Ford administration. After Ford left office, Scalia went to teach at the University of Chicago Law School. One of his best-known law review articles was an attack on affirmative action and the white judges who supported it. As his central metaphor, Scalia appropriated the old joke in which the Lone Ranger and Tonto find themselves surrounded by hostile Indians. "Looks like we're in trouble, Tonto," the masked man says. Replies his Indian sidekick, "What do you mean 'we,' white man?"
Scalia saw himself and other white children of immigrants as the Indian sidekicks. He felt no responsibility for the disadvantages suffered by black Americans. "My father not only never lived off the sweat of a black man's brow, he never saw a black man until he was 21 years old," he wrote. But liberal whites were now proposing to give black Americans jobs and educational opportunities Scalia felt properly belonged, on grounds of merit, to white ethnics like himself.
It was a bold and eloquent statement of the case against affirmative action, and it almost certainly played a role in moving Scalia into line for a judicial appointment under Reagan. Critics argued in vain that Scalia himself had been accorded educational and social privilege based at least in part on the color of his skin. And those critics -- and particularly those interested in Native American rights -- might have pointed out another irony. Apparently unaware or simply indifferent to the fact that his language might be offensive, Scalia had liberally larded his discussion of race and opportunity with stage-Indian dialect, complete with broken syntax and pidgin phrases like "ugh" and "ride-um west."
In 1982, Reagan had named Scalia to the D.C. Circuit Court. There, some observers felt, he simply leapfrogged ahead of Bork by a display of energy and self-assurance. Scalia's opinions were sweeping, and read like op-ed articles. He took a narrow view of the role of the courts; they had no legitimacy to decide important social questions or to reflect changing social conditions. Their main role was to decide disputes between individual parties, and to decide them on narrow grounds drawn from within the law itself. For courts to do otherwise -- to extend constitutional guarantees in light of perceived new threats to liberty -- would make courts a legislative, not a legal, branch of the government.
Despite his hard-edged views, Scalia breezed to confirmation for the high court seat by a Senate vote of 98 to 0. Though he might have seen his appointment as a triumph of merit, the vote could also be seen as a victory for affirmative action: Scalia was the first Italian American ever named to the highest court.
Rarely has a new justice made such an assertive debut. At his very first oral argument, Scalia peppered the lawyers with so many combative questions that Justice Lewis Powell finally leaned over to Justice Thurgood Marshall and declaimed in a stage whisper, "Do you suppose he knows the rest of us are here?"
In 1987, the American Lawyer, an influential trade magazine, proclaimed that the Supreme Court was "Scalia's Court." Scalia's "vibrancy," Stephen J. Adler wrote, had created an atmosphere on the court that was "much more amiable than it has been in recent years." All signs indicated that "Scalia could have a far more fundamental impact on the next 20 years of constitutional interpretation than any other justice."
By December 1987, then, when the Smith case first reached the Supreme Court, Scalia had every reason to consider himself the leader of a growing army of reliably conservative judges who would set constitutional policy for a generation to come.
No one knew what the accession of the right on the court might mean for First Amendment protection of religious freedom. In general, conservatives tend to be friendly toward religious belief. But Scalia was aggressively hostile to a focus on individual rights. He saw legislatures, not courts, as the proper place for political decisions. His vote in Smith was a question mark. At a skull session convened by the Oregon Department of Justice in the fall of 1987, one prominent consultant had told the group that Scalia was a cipher. "Scalia may not know approach on relig[ion] cases yet," read handwritten notes of the briefing taken by Oregon's attorney general, Dave Frohnmayer.
In its first trip to the Supreme Court, Smith had attracted little notice from the press or court watchers. The court's ruling was mildly surprising. It remanded the case to the Oregon Supreme Court with instructions that the state court should decide whether the Native American Church's ceremony was a crime in Oregon. Not until later would people realize that the case was important -- in part because Scalia seemed to know exactly where he wanted it to go.
Few processes in American government are more mysterious than the deliberations of the justices. But in 1993, the court's veil of secrecy was pierced. Justice Thurgood Marshall, who had died a few months earlier, had left his papers to the Library of Congress with instructions to open them to researchers. The papers showed Scalia carefully refining the Smith case behind the scenes.
On February 20, 1988, Justice John Paul Stevens circulated a first draft of a majority opinion in the case. The draft resembled the final opinion issued two months later. But there were a few significant changes, which show that Scalia was taking a keen interest in the precise wording of the opinion. Stevens's draft contained a footnote pointing out that a ruling in favor of the church would not necessarily mean that other drugs, like marijuana, could claim religious protection. And Stevens's draft also said that if the Oregon Supreme Court were to hold that the ceremonial use of peyote was not illegal, that decision "would almost certainly preclude any further review by this court."
On April 14, 1988, Scalia responded to Stevens's draft. The letter, signed "Nino," tells Stevens that Scalia "thinks" he is able to "join your thoughtful opinion," but that he has "two relatively minor problems that I hope you can remedy."
"First . . . I think footnote 15 too strongly hints to the Oregon Supreme Court that it should find [ceremonial peyote] use lawful as a matter of state law because of federal constitutional concerns . . . Second, I am unwilling to suggest that if Oregon does not make religious use of peyote illegal, the federal constitutional inquiry is at an end . . . [I] think it far from clear that Sherbert, Thomas and Hobbie control where the state has an interest in prohibiting, discouraging or regulating the conduct for which the employee was dismissed even though it does not make the conduct illegal . . . If you could make these changes, I would be pleased to join."
The court's opinion was announced on April 20. Justice Stevens's opinion, joined by Chief Justice Rehnquist and Justices White, O'Connor and Scalia, remanded the case to the Oregon Supreme Court for an opinion on Oregon law. The footnote questioned by Scalia appeared in a much scaled-down version, including no case citations and no discussion of the differences between use of peyote and use of marijuana for religious purposes.
In October 1988, the Oregon Supreme Court ruled in favor of the plaintiffs, and a few months later Frohnmayer's office appealed again to the U.S. Supreme Court. By the second time Smith came before the court, in the fall of 1989, everybody knew the stakes were high. The first question from the bench brought home exactly how seriously the justices were taking it. Stevens asked Frohnmayer whether Oregon could constitutionally ban the use of wine in Christian Communion ceremonies. Frohnmayer's answer was carefully noncommittal. Christians did not drink sacramental wine for its physiological effect, but peyotists eat their sacrament "at least in part for its very hallucinogenic properties."
Craig Dorsay, a lawyer from the Native American program of Oregon Legal Services, then rose to speak for Smith and Black. Dorsay tried to direct the court's attention to the Sherbert test, which held that only a strong public "compelling interest" could override religious beliefs. But he later recalled as the defining moment of the argument one of Scalia's trademark interruptions: "I suppose you could say a law against human sacrifice would, you know, would affect only the Aztecs."
Years later Dorsay still remembered that moment -- which seemed to slur Native American religion as a primitive practice like human sacrifice -- with sharp resentment. "You could hear Indian people -- there were a large number in the courtroom -- just sort of exhale, a large sigh, like, 'Oh, God, we got this jerk again.' "
Looking back, the argument was striking mostly for what it did not say. Not one word from counsel, not one question from the bench, suggested that the case turned on anything except the appropriate application of the Sherbert "compelling interest" test. All the briefs in the case took the test for granted, and no justice suggested otherwise.
Early on the morning of April 17, 1990, Dave Frohnmayer got a call from a reporter. The reporter told him that he had won, which did not surprise him greatly. But the reporter seemed concerned that the Supreme Court had "taken away" religious freedom. Not until Frohnmayer got a copy of the opinion by fax did he realize that the court had done something no one had asked or expected it to do. The court had thrown Sherbert out the window.
The majority opinion in Smith was written by Scalia. Like most of his major opinions, it is radical in its approach and less than respectful of legal precedent. Free exercise of religion, Scalia wrote, protected worshipers only against laws specifically aimed at religious practice. Because Oregon's law had a health and safety rationale rather than an anti-religious origin, "free exercise" did not bar its application to religious use of peyote.
As precedent, Scalia cited Minersville School District v. Gobitis, a 1940 case in which the court had held that a local school district had the right to expel children who were Jehovah's Witnesses when they refused -- as required by their faith -- to recite the Pledge of Allegiance. At this point in the opinion, constitutionally sophisticated readers would have begun to suspect that something was seriously wrong: Gobitis is widely considered one of the court's worst mistakes. In fact, just three years after Gobitis, in a case called West Virginia State Board of Education v. Barnette, the court had made a stunning turnaround, overruling Gobitis and holding that the First Amendment does after all protect children who do not wish to recite the pledge.
But a reader would not have discerned that from Scalia's opinion in Smith; as far as the opinion was concerned, Gobitis remained good law. It was the kind of thing that would earn a first-year law student a failing mark on an exam. Gobitis was a strong, sweeping opinion, and very few observers over the last 50 years have doubted that the court in Barnette had repented -- except Antonin Scalia.
The entire Smith case had taken place within the context of the Sherbert test. That test Scalia now brushed aside. When the case concerned an "across-the-board criminal prohibition on a particular form of conduct," Scalia explained, Sherbert didn't apply anymore.
Religious minorities penalized -- even outlawed -- by "neutral" laws, Scalia explained, shouldn't look to the courts anymore for protection. Their only hope lay in the state legislatures and Congress, which could, if they chose, protect religious belief. But that was a matter of politics, not law. "It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in," Scalia conceded, but that was an "unavoidable consequence of democratic government."
Americans are not used to being told that their religious freedom depends on a legislature's whim. But such bluntness is a hallmark of Scalia's style.
Some court observers have suggested that the justices saw the Smith opinion as unremarkable, a routine summary of previous case law. If so, that perception simply underscores the isolation of the court in its marble palace, where outsiders dare not approach except with hushed voice and downcast eyes. The religious community was unschooled in the deference due the nine oracles of America's secular religion; it reacted with a collective scream of outrage heard across the country.
Within months of the decision, an extraordinary coalition of religious organizations and public interest groups came together. Their strategy was an audacious one: They would overturn Smith in Congress. Legislative revision is common in cases interpreting statutes. The theory is that Congress wrote the statute, and it has the authority to amend it when, in the members' judgment, the court gets it wrong. Smith, however, was a constitutional decision; and short of a constitutional amendment, the court is supposed to have the final word on interpretation of the Constitution.
Nonetheless, in the fall of 1991, a coalition of groups began to meet to plan such a legislative override of Smith. The group was remarkable for its breadth. Conservative Christian groups like Pat Robertson's American Center for Law and Justice, the antifeminist Concerned Women for America, and the Southern Baptist Convention sat down with representatives from the American Civil Liberties Union and People for the American Way. Rep. Stephen Solarz, a liberal New York Democrat, introduced the bill, which was called the Religious Freedom Restoration Act (RFRA).
The act baldly told the court that it had screwed up. Therefore, Congress was now overruling the court, stepping in "to restore the compelling interest test . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened." From now on, no government, state or federal, could "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the law passed the "compelling interest" test. And the test would apply "to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this act."
The Religious Freedom Restoration Act passed the House of Representatives overwhelmingly on May 11, 1993. In the Senate, it passed by 97 to 3. In November 1993, President Clinton signed the bill.
If law were a movie, the story would end there, with the sound of trumpets and the rumble of the walls falling before the Lord's anointed. But the struggle over the legacy of Smith has continued unabated since the passage of RFRA. In a 1997 decision called City of Boerne v. Flores, the Supreme Court briskly rejected Congress's attempt to tell it how to rule on religious-freedom issues.
In the wake of Smith and Boerne, the law of religious freedom remains unsettled. In the years immediately after the Smith decision, it seemed possible that the court would turn away from the direction in which Scalia was leading it in 1990. At the end of the 1995-96 term, National Public Radio's Nina Totenberg broadcast what almost seemed to be an intellectual epitaph for Scalia: "Whether he is a happy or unhappy warrior is the subject of some debate, but Scalia has been content to write dissenting opinions often only for himself and Justice Clarence Thomas and to win no converts to his often ultra-
conservative point of view."
By 1996 Scalia was allowing his bitterness to show. In a much-criticized speech to a prayer breakfast in Mississippi, he cast himself in the role of the lonely religious dissenter ridiculed by a trivial, secular culture. "We are fools for Christ's sake," he said. "We must pray for the courage to endure the scorn of the sophisticated world." And in the wake of Bill Clinton's landslide reelection that year, friends and associates of Scalia began to hint that the justice would consider a conservative draft as the Republican presidential candidate in the year 2000.
The presidential talk was far-fetched and almost silly. But it underscored that much of Scalia's unhappiness was due to presidential politics. In 1986, when he took his seat on the court, he and other conservative jurists looked confidently forward to an unbroken string of Republican nominations to the court, which would solidify right-wing dominance and make coalition-building unnecessary. But in another of history's surprises, two-party politics reemerged. Bill Clinton, not George Bush, named the last two justices.
Historians will be debating the court's conduct in Bush v. Gore as long as there is a Supreme Court. But one thing was immediately clear: Antonin Scalia had been a key player in pushing the court to a result that surprised almost every outsider. Indeed, the course of the case seemed remarkably similar to that of Smith. On its first trip to Washington, the Florida case seemed a straightforward matter of states' rights. But at the first oral argument, a new question emerged -- one that news reports suggested had been pressed behind the scenes by Scalia in one of his "Ninograms," or memos to the other eight justices. The question was whether the Florida Supreme Court had relied on the state's own constitution in deciding for Al Gore; if so, Scalia seemed to argue from the bench, the decision was invalid. Only the federal constitution, and statutes passed by the state legislature, could apply.
By the time the case returned from the Florida Supreme Court, that issue had receded. The Florida court had ordered a recount based exclusively on its interpretation of the legislature's will. Now the Supreme Court stopped the recount on a different ground -- that the Florida court had not set a more detailed standard for counting disputed ballots than the legislature's formula of "the intent of the voter." It was another rich Catch-22. In Smith, the court had transformed an unemployment case into a criminal case, and then decided against Smith and Black because their case did not concern unemployment. In Bush, the court sternly warned a state court that it had no power to alter the legislative standard, then reversed its decision because it had not altered that standard.
On the dramatic Saturday on which the Supreme Court ordered a halt to the counting of votes in Florida, Scalia could not resist an early victory lap. In an unusual statement accompanying the order, Scalia seemed to boast that he had five votes already lined up to permanently stop the count. That position, perhaps by coincidence, ensured that his favored candidate would become president of the United States.
The plot had twisted: Scalia was not Tonto, or even the Lone Ranger. For George W. Bush and the GOP, Antonin Scalia and his four conservative colleagues were now the cavalry, riding to the rescue.