The Supreme Court and “a fabricated case”

Back in 2012, I departed from the eighteenth century to consider an issue in the intersection of law and history.

What does it mean when a Supreme Court decision guiding decades of law and policy turns out to be based on a historical falsehood?

In 1953 the court issued what’s come to be known as the Reynolds decision, requiring courts to defer to the executive branch of the federal government when it invokes national security and the need for secrecy to demand an end to legal proceedings. The majority of justices concluded that the government wouldn’t do that for petty or self-serving reasons.

Over forty years later, documents emerged to show that the U.S. Air Force had done precisely what the Supreme Court said we must assume it wouldn’t do: hide evidence and stifle a lawsuit to avoid embarrassment and liability. Yet Reynolds remains a guiding legal precedent.

Last week the U.S. Supreme Court issued a decision, Kennedy v. Bermerton School District, that allowed a public school employee to lead public prayers on school grounds despite the First Amendment’s religious establishment clause and previous court precedents. What’s more, the majority decision misstated the facts of the case, as shown by citations and a photograph included in the minority dissent.

Ian Milhiser at Vox wrote that one consequence of those false statements is that it’s unclear what the decision actually allowed:

Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.” . . .

Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer. . . . [According to already established precedents] Public school employees may engage in private acts of devotion, such as saying a prayer over their lunch in a school cafeteria while they are on the job.

But there’s nothing private about a school employee conducting a media tour touting his plans to pray at the 50-yard line of a football field immediately after a game. There is nothing private about the coach carrying out that plan — especially when he does so surrounded by kneeling players, cameras, and members of the public.

Another consequence of this decision is, of course, that the U.S. Supreme Court majority has further damaged its own credibility. We expect disagreements over matters of opinion. But when justices define the nation’s law while stating things that we can all see are false, they make our legal system look deceptive and arbitrary.