The question of prayer in public schools

In 1955 Anthony Lewis won the Pulitzer Prize in National Reporting while working for the Washington Daily News. Eight years later he won it again at The New York Times. He later wrote a column for The Times for more than 30 years.

 

Although his work was wide-ranging, he was best known for his coverage of the Supreme Court and the law, the subjects of his 1963 Pulitzer Prize-winning entry. Ronald K.L. Collins, a legal scholar, remarked after Lewis’s 2013 death on his “incredible talent in making the law not only intelligible but also in making it compelling.”

 

In addition to his reporting, Lewis wrote Gideon’s Trumpet, a book on the Supreme Court case that guaranteed legal representation to poor defendants. The book is a nonfiction classic. His Make No Law, an account of Times v. Sullivan, a major libel and First Amendment case, was published in 1991.

 

The piece printed here was part of the 1963 prize-winning entry. Published July 1, 1962, it analyzes a Supreme Court decision on prayer in public schools and suggests that the country has yet to see the final verdict on the issue.

There seems to be a rhythm in the history of the Supreme Court that periodically subjects that rather remote institution to verbal assault as passionate as the political branches of government ever feel. Criticism flares, then slowly subsides; just as the court sinks back into obscurity, it touches the public nerve again and provokes new cries of outrage.

 

This was a week for outrage. A 22-line prayer said in the public schools of New York State set off a new and violent cycle of attacks on the court. A 6 to 1 decision holding that reading the prayer daily in a classroom constituted an unconstitutional “establishment of religion” rekindled all the angry emotions that the justices had stirred during the last decade on the issues of race relations and communism, but that had at last began to fade.

 

Some of the language used in attacks on the prayer decision had to be reread to be believed.

 

“I know of nothing in my lifetime,” said Representative L. Mendel Rivers, South Carolina Democrat, “that could give more aid and comfort to Moscow than this bold, malicious, atheistic and sacrilegious twist of this unpredictable group of uncontrolled despots.”

 

It was an extraordinary spectacle. For several days all the serious business of the Congress of the United States was put aside while members spent their time denouncing the Supreme Court. The prayer decision seemed to bring out in heightened form all the criticism aimed at the court in recent years.

 

That criticism has been, and is, of several kinds. Or put it in another way: the critics have different motivations. The various categories of criticism can be traced in the uproar this week.

 

There were, first, those who were delighted to find any excuse to assault the Supreme Court. This was the particular reaction of Southerners, who did their best to suggest that the prayer ruling only showed how equally wrong the court had been to outlaw segregation in public schools.

 

Even Senator Sam J. Ervin of North Carolina, a former state supreme court justice, could not resist this rhetorical question on the Senate floor.

 

“I should like to ask whether we would be far wrong in saying that in this decision the Supreme Court has held that God is unconstitutional and for that reason the public schools must be segregated against Him?”

 

The grotesque distortion of suggesting that the court had held God unconstitutional was characteristic of many comments. The purpose was abuse, not rational discussion of the court’s reasoning. And so these critics tended to denounce the motives of justices, terming them pro-Communist, atheistic, conspiratorial.

 

Those who would defend the court find it difficult to reply to that kind of criticism. All that can be said, really, is that the justices are not conscious villains. No honest observer of the Supreme Court believes that the nine men trying to carry its heavy load are giving anything but their best judgment of what the Constitution means.

 

The rights and wrongs of the court’s analysis of the Constitution and the New York prayer are another matter. The justices have no divine title to correctness; they have only their commissions and the power of their reasoning. And anyone should be welcome to disagree.

 

There were many who stated their disagreement this week. A number of northern senators, for example, criticized the result reached by the court without engaging in demagogic denunciations of the justices. But this was criticism without any real analysis of the con. There was a suspicion also that the politicians’ criticism, even when moderately expressed, was often based on political consideration.

 

But there was also during the week the beginning of that kind of Supreme Court criticism that ought ideally to rise above bias and politics – the criticism of scholars. And here, characteristically, the doubts one heard were less about the result reached by the court than about its reasoning – in the opinion of Justice Hugo L. Black for the majority.

 

It was a broadly phrased opinion, full of quotable language about the “wall of separation” between church and state, and with lessons from English history. But when one sought precise, pinpointed reasons for the holding that this prayer was a violation of the Constitution, they were not so easy to find.

 

The opinion dwelt on the rigors imposed on dissenters by the established churches of England and the American colonies. What was not explained was the relation of this eloquent history to the particular issue before the Supreme Court – a brief, non-denominational prayer.

 

The very generality of the opinion deeply disturbed some law professors and close Washington students of the court. They suggested that on an issue so sensitive the court would be better advised to walk a narrow line and not to raise false hopes – and fears – by sonorous phrases.

 

In a way that was scholars’ criticism, but it also had a rather practical basis. For those who admire the court think one of its fundamental objects should be to protect itself from what Chief Justice Hughes called self-inflicted wounds by holding always to a cautious course.

 

One way that could have been done in this prayer case was by not deciding it at all. That is, the court could have decided it on some such ground as the standing of the complaining parents to bring the case. Or the court could have put it to a full bench next fall, as it has done at other times with controversial issues.

 

Needless to say, not everyone agreed with the scholars either. Within the law schools, at the bar and especially among the minority groups affected by the decision, there was this week much strong support for both the court’s outcome and Justice Black’s opinion, even though that support may not have been so vocal as the outraged criticism heard in Congress.

 

In any case, no one suggests that the Supreme Court can please everyone all the time. The very nature of the issues with which it must deal makes that an impossibility. However intellectually superior an opinion was written on the divisive issues of church and state, it would doubtless provoke furious controversy. And it is always easier for those who do not have the ultimate responsibility of interpreting the Constitution to criticize those who do.

 

Those who believe in the Supreme Court and its role in our society are left with a problem. They do not want to give any weight to the know-nothings who attack the court without thought, without decency, for the basest reasons. They do not doubt the desire of the justices to answer any constitutional question without fear or favor, and they do not want the court to let public emotions influence its decisions.

 

But there is that feeling that the court as an institution is more important than any single decision. It is not improper for the justices to weigh the consequences of stepping into some questions – and, if the consequences are great, to exercise care accordingly.

 

Some who would be labeled sympathetic critics think due care was lacking in the New York prayer decision this week. Others say the critics are asking not for caution but craven surrender to popular opposition, and they credit the court with courage for going ahead last Monday in the face of certain protest. Some later generation will give the final verdict. 

 

Sources: “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” The New York Times, March 25, 2013.