The Brennan Legacy and the 2016 Election

Time for a reality check. What we need is a winner, because a Trump win in November is how we stop Hillary from appointing another Breyer, Ginsburg, Kagan, or Sotomayor to the Supreme Court. If past is prelude, even a Republican-controlled Senate can’t be counted on to rebuff a Hillary appointee; it’s more likely to vote “No” – and make it stick -- if Trump goes off the rails. That’s reality, and as Bruce Walker pointed out in his May 6th article, the stakes are high.

Appointments to our super-legislature, the Supreme Court, affect our constitutional rights in long and deep ways. George H. Bush appointed Clarence Thomas, and his son appointed Sam Alito. Democrat presidents invariably appoint dull leftist hacks, and Republican presidents, alone, have appointed good justices (and a few bad ones).

Right. Getting a William Brennan or David Souter from a Republican president is a possibility; getting a Ruth Bader Ginsburg from a Democrat is a certainty. And it’s a virtual certainty that some Republicans will choose to look senatorial by voting to confirm even an Elena Kagan. Even after Bork. Count on it. Hillary’s appointees will be as bad as Obama’s, will be appointed with the same partisan objectives, and will be confirmed no matter who controls the Senate, with every Democrat voting “Aye.”

But also, wrong. To grasp why our constitutional rights are affected in ways long and deep we need to stay focused on the obvious. Deep because Ginsburg, Breyer, Sotomayor, and Kagan aren’t just dull leftist hacks, and neither were Republican appointees like Warren, Brennan, Blackmun, Stevens, Souter, and O’Connor. These aren’t innocents who blundered into big government leftism by mistake. The worst of them are smart, determined, brazenly partisan political operatives who hold the concept of negative rights and the separation of powers in open contempt, and are not always dedicated to the truth. Long because we’re not talking about Hillary as a possible one-term failure here; we’re talking about her Supreme Court legacy: decades of relentless assault on our most fundamental values and rights and traditions by unelected oath-breakers who openly trash the Constitution they’ve sworn to uphold and slander anyone who dares defend it as an enemy of social justice.

Eisenhower’s attempt at appeasement by nominating Brennan is the classic example of how badly a cynical or misguided appointment can poison the well. To appear more presidential in an election year – that is, to make northeastern liberals feel okay about a second term – Eisenhower placed a lifelong leftist Democrat, and son of a union organizer, on the Supreme Court.

We’ve been paying for it ever since. Brennan was on the court for 33 years, and his influence is still felt, especially when we’re getting beaten up over minority rights. In 1963 Brennan declared minority free exercise rights absolute and preemptive, arguing that when they appear threatened it becomes not only unnecessary, but inappropriate to demand evidence anyone’s rights are actually being violated. If conservatives think Abington v. Schempp did its greatest harm by ending school prayer, they’re wrong. By denying the need to prove governmental coercion it allowed the left to ignore or suppress observable, verifiable fact, and replace observational evidence with a witch’s brew of conjecture, stereotyping, psychobabble and anti-Christian bigotry. Once that happened, Oregon’s persecution of Christian bakers and North Carolina’s fight with the DOJ over transgender bathrooms were just a matter of time.

In 1968’s Flast v. Cohen Earl Warren took the next logical step by relieving establishment clause plaintiffs of the burden of demonstrating standing. That meant any taxpayer with a grudge against Christians and breath to mist a mirror had “access” to federal court.

In 1971’s Lemon v. Kurtzman Warren Burger added the entanglement test, which allowed progressives to strike down a law even though it was neutral toward religion because it passed the “effect and purpose” tests.

In 1985’s Wallace v. Jaffree John Paul Stevens redefined legislative purpose by insisting that a lower court’s findings made it “unnecessary, and indeed inappropriate, to evaluate the practical significance of the addition of the words "or voluntary prayer" to the statute.” The court struck down a standard moment of silence law not because of what it said or did, but because of what the liberals decided the legislature must have wanted it to do. Not surprisingly, Stevens found it useful to suppress the statutory language, relying instead on cherry-picked anecdotes and O’Connor’s musings about “the myriad, subtle ways in which Establishment Clause values can be eroded.” You can almost hear the precious butterflies fluttering by.

And then there’s Souter. Souter earned our opprobrium by banishing the Ten Commandments from a Kentucky courthouse, in the process grossly misrepresenting precedent; suggesting a pastor’s invocation at a dedication ceremony was the equivalent of hate speech that established the law’s purpose retroactively; insinuating that Thomas Jefferson was speaking of secular authority when he wrote “endowed by their Creator,” then using that fabrication to imply the legislature was lying; and assuring us that a progressive “sense of the past” trumps historical fact, and that “public discourse at the present time” overrules the Constitution.

On the comic side there was his notion that a universally recognized religious symbol can be made secular by making it more symbolic, say by removing the text from the twin tablets and leaving only ten Roman numerals. All things considered, his opinion of the court in McCreary County v. Kentucky ACLU may set the high water mark of liberal establishment clause abuse.

Of course, these “teachings” of Brennan, Warren, Burger, Stevens, O’Connor, and Souter are not the exclusive property of the Supreme Court, because once everyday reality is banished, everyone gets to play. In 2002 they gave us the Ninth Circuit’s decision to ban “under God” from the Pledge of Allegiance. Seven years later District Judge Robert Gettleman ruled the Illinois Silent Reflection and Student Prayer Act unconstitutional because "the plain language of the statute... suggests an intent to force the introduction of the concept of prayer into the schools." Hear the fluttering of those gossamer wings yet? This is ideological psychobabble fully worthy of Brennan and O'Connor. Or Yale. Or the University of Missouri. Or an Oregon bureaucrat.

Finally, we got Town of Greece in which the Second Circuit ignored Supreme Court precedent to trash a tradition, traceable to the First Continental Congress in 1774, of opening public meetings with an invocation. Their reason:

the extent to which a given act conveys the message of affiliation... will depend on the various circumstances that circumscribe it. Accordingly, we do not aim to specify what the Establishment Clause allows, but restrict ourselves to noting the ways in which this town must be read to have conveyed a religious affiliation. [my emphasis]

Like Obamabots marching in lockstep, the four SCOTUS liberals voted to uphold this indefensible decision.

That’s what long and deep means. It’s astonishing that almost every defining feature of progressive establishment clause doctrine from the outlawing of school prayer to the present was advocated by justices appointed by Republican presidents. Brennan did in the need for evidence of governmental coercion; Warren crippled the requirement for standing; Burger’s Lemon struck down a religion neutral law for complying with SCOTUS dictat; O’Connor gave us the endorsement test, which since 1985 has provided ideological cover for the most radical progressive opinions; and Brennan, Stevens, Blackmun, and Souter became that test’s enthusiastic advocates, establishing it as mainstream precedent. It was O’Connor’s test that was adapted by the Second Circuit in their disgraceful Town of Greece opinion, that Stevens channeled in Wallace, that Blackmun applied in Allegheny v. ACLU, and that Souter relied on heavily to justify the decision in McCreary.

However, that doesn’t tell us what some establishment Republicans might think, because Brennan wasn’t the only one nominated for the wrong reason. Blackmun was trotted in front of the Senate in apparent capitulation to the Democrats after Nixon’s Haynsworth and Carswell appointments were shot down. O’Connor was appointed because the establishment wanted a woman on the court. And Souter was nominated following the Bork debacle because he had no record for Biden and Kennedy to attack, and was promoted by the same John Sununu who is now highly critical of Trump.

What we need is not a candidate who appears presidential and senators who appear senatorial, bipartisan, or any other code word for surrender. You need that to keep the Republican establishment, the media and the Democrats happy. We need a fighter who knows what it takes to win and has the guts to do it. And we need senators willing to call a spade a spade and fight to the bitter end, even if they’re fighting a straying president of their own party. If we don’t have that being unified, and even being right, mean nothing.

Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at ehstewartjr@gmail.com.