The Nine [71]
But it wasn’t a question of shame—it was fear. The students who had challenged the policy had been pushed, threatened, and placed in so much danger that the local judge directed that their names be taken off the complaint. That, of course, was precisely the point—that the state had harnessed the power of religious conformity to exclude outsiders.
In an opinion by Stevens, the Court struck down the student-led prayers in Santa Fe by a 6–3 vote, with Rehnquist, Scalia, and Thomas in dissent. The core of Stevens’s opinion was a rejection of Sekulow’s argument that the prayers were merely “private speech” by the students. “These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” he wrote. “The expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy.” It was no answer, Stevens continued, to say that students who were offended by the prayers could simply choose to avoid the games. The school district could not “exact religious conformity from a student as the price of joining her classmates at a varsity football game.”
Sekulow was disappointed, of course, but the defeat in the Santa Fe case, combined with his earlier victories before the Court, actually wound up being a model for how the Supreme Court ought to work. The majority of the Court had settled on a reasonable and comprehensible rule for religious observances on government property—that the government had to allow genuinely private religious activity, but at the same time officials could not sponsor or endorse such rituals. After Santa Fe, the Court stopped getting so many of these cases because the lower courts generally could apply these rules on their own. The Court’s compromise on the issue didn’t satisfy everyone, but it didn’t offend everyone, either—which made it a classic expression of the style of the Rehnquist Nine at this moment in its history. This was not a Court for the true believers—for Scalia, Thomas, and even Rehnquist himself—but rather a Court for the middle-of-the-road majority.
Mostly, that meant O’Connor. Increasingly, it also meant Stephen Breyer.
Like most other justices, Breyer took a few years to feel fully comfortable on the Court, but by the last years of Clinton’s term, he had come into his own. On one level, Breyer made an unlikely power broker. He could be breathtakingly oblivious to his surroundings. One of his law clerks never showed up for work until noon; another lay on the floor for long periods because of a back condition. In neither instance did Breyer inquire or even, apparently, notice, as long as his chambers’ work was done. He was also renowned among law clerks for conducting high-volume discussions of Court business in restaurants and other public places. Breyer was so engaged in the work of the Court that he sometimes ignored the exigencies of everyday life.
But Breyer had been paying attention when he watched his former boss Ted Kennedy push legislation through the Senate, building one coalition at a time, often with sometime adversaries. In the same way, Breyer worked his colleagues—decorously, respectfully, but unmistakably—to try to get them to see things his way. This approach was hardly unique in the Court’s history—it was a crucial part of the Brennan legend—but the Rehnquist Court had no comparable figure. Souter and Thomas were downright reclusive, and Stevens and Ginsburg tended that way; Kennedy, sometimes prickly, often mysterious, also kept to himself; Scalia prided himself on never lobbying, and Rehnquist had no interest in anything that might disrupt the swift procession of cases from oral argument to conference to opinion.
Once, around this time, the chief read a draft opinion of one of Scalia’s attacks on O’Connor and immediately summoned him to the phone. “Nino, you’re pissing off Sandra again,” Rehnquist said. “Stop it!” For her part, O’Connor was willing to entertain suitors from her queenly perch