The genius of the Constitution is to establish zones in which the rights of the minority are protected against majority oppression: freedom of speech and religion, for example, or equal protection of the laws. The role of the Supreme Court is, to borrow Chief Justice John Roberts’ metaphor, to umpire the play within those zones, calling fouls on the majority when it oversteps.
But there are occasions when the umpire’s call, no matter how well intentioned, is influenced — distorted, even — by pre-existing assumptions and biases. The current Supreme Court term offers painful examples of this phenomenon in two recent cases: one upholding Michigan’s ban on affirmative action; the other, just this week, upholding sectarian prayers at local government meetings.
The majority in these very different cases got it wrong, yet for a similar reason. The justices simply failed to understand the situation from the perspective of those who find themselves, by dint of race or religion, in the minority.
Let’s start with the newest case, about the town of Greece, N.Y., and its practice of beginning board meetings with a prayer. Specifically, and almost always, a prayer by a Christian minister, often explicitly sectarian: “We acknowledge the saving sacrifice of Jesus Christ on the cross,” one guest chaplain said. “We draw strength, vitality and confidence from his resurrection at Easter.” Board members would regularly stand, bow their heads and make the sign of the cross.
Of the invocations given at 120 monthly meetings, only four were delivered by non-Christians — all in 2008, after the plaintiffs in the case complained.
For the five conservative justices in the Supreme Court majority, this was not a problem. “Although most of the prayer givers were Christian,” Justice Anthony Kennedy wrote, “this fact reflected only the predominantly Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths.”