In the mid-1980s, Judge W. Brevard Hand of the District Court for the Southern District of Alabama issued two startling decisions that raised difficult questions for a generation of scholars and activists. First, how can an activist judge oppose judicial activism? Second, can a non-religion function as a state-established religion? And, finally, why should two district court cases warrant so much attention from historians, pundits, and armchair legal scholars when they were quickly overturned and even “ridiculed” (311)? In his sensitive and meticulous examination of Hand’s school-religion decisions, Robert Daniel Rubin offers cogent answers to all three of these difficult questions. The two cases—Jaffree v. Board of School Commissioners of Mobile County (1983) and Smith v. Board of School Commissioners of Mobile County (1987)—broke new legal ground on the question of prayer in public schools. In the first, secular activist Ishmael Jaffree sought to stop Mobile’s public school teachers from leading students in prayer. In the second, evangelical activists hoped to prove that Mobile’s public schools had unconstitutionally established secular humanism as their de facto religion. In both of his decisions, Hand disregarded Supreme Court precedent to make intentionally provocative legal and political points. In his thoughtful treatment of these decisions and their impact, Rubin’s Judicial Review and American Conservatism: Christianity, Public Education, and the Federal Courts in the Reagan Era moves into and beyond the local situation in Mobile, Alabama. First, Rubin describes the initial complaint of Ishmael Jaffree: Jaffree was shocked to discover that teachers were leading his children in Christian prayer. Unlike the vast majority of his Mobile community, Jaffree thought such prayers violated both constitutional precedent and the norms of good schooling. With good reason, Jaffree was confident that a federal judge would agree. Like many observers, Jaffree was utterly flabbergasted by Hand’s decision. In spite of Supreme Court precedent, Hand ruled in 1983 that Alabama had every right to make its own laws about school prayer, even if those laws contravened Supreme Court rulings. The national response was immediate. Hand’s decision was reversed by the appellate court and the case wended its way to the U.S. Supreme Court. Was it possible, observers asked, to overturn established precedent that disallowed teacher-led prayer in public schools? Was it possible for conservative judges to strike down years of liberal court rulings? And could popular majorities reestablish their political dominance unfettered by judicial checks? As Rubin carefully delineates, conservative politicians, intellectuals, and activists were by no means united in their answers or strategies. Senate stalwarts such as North Carolina’s Jesse Helms pushed hard and unsuccessfully to strip courts of their ability to contravene popular majorities. President Ronald Reagan offered his own watered-down guarantee of students’ right to pray in public schools. And Supreme Court justice William Rehnquist joined Hand as “a judicial activist seeking to curtail judicial activism” (211). In the end, the U.S. Supreme Court threw out Hand’s obstreperous ruling. Hand was not surprised. In his original decision, he included language that suggested his next step. If public schools could not lead Christian prayers, then by rights they should not teach any religion at all. And, leaning on an array of conservative thinkers and activists, in the case of Smith v. Board of School Commissioners of Mobile County, Hand entertained the notion that Mobile schools had indeed taught religion: inspired by the work of evangelical intellectuals such as Rousas John Rushdoony and Francis Schaeffer, the evangelical plaintiffs in the new case alleged that Mobile public schools had imposed the religion of secular humanism. As Rubin relates, legally the attack against secular humanism died an “ignominious death” (313). Yet the case gave Hand the chance to stake out—even if very briefly—the legal high ground that conservative religious activists had sought for decades. By targeting the secular mindset of curriculum-makers, Hand and the evangelicals who supported him hoped to demonstrate that it was impossible to remove religion from schooling. The ultimate goal, in Rubin’s words, was that “backed against a wall, liberals would relent and permit theistic religion at least a role in the education process” (11). To make his arguments in both Jaffree and Smith, Hand plunged into precisely the sort of judicial activism he had fought against. By ignoring relevant precedent, he sought to define a renewed vision of limited court powers. Much of the intellectual heavy lifting in Hand’s argument was done by legal scholar James McClellan. As have many conservatives of his time and since, McClellan hoped to return to what he saw as the original intent of the founding fathers. Instead of interpreting the Constitution as a living document, McClellan, Hand, and other conservative judicial activists wanted to let “the law be the law” (100). Throughout the book, Rubin masterfully explores the profound tensions created by this conservative form of anti-activist activism. Similarly, these two cases give Rubin the opportunity to explain the ways conservative religious activists—mostly from evangelical Protestant backgrounds—adopted the rhetoric and strategies of the rights revolution. By defining the supposedly secular goals of public schools as themselves religious, Hand and his allies sought to define conservative evangelical Christians as a beleaguered minority, due all the protections of any minority group. Most difficult to address, however, is the ultimate influence of Hand’s decisions. Rubin calls them a “crucial precedent … a beacon” (316) for later generations of conservative scholars and activists. Yet, as he wisely notes, there was no direct influence on later conservatives such as Justice Clarence Thomas. What Hand shouted as a lone dissenter, later scholars could discuss in new organizations such as the Federalist Society. It is impossible to prove the degree to which such later developments were influenced by Hand’s activism, but, as Rubin argues, “Hand’s legacy was not to cry in the wilderness, but to ring out through the ideas and actions of a young generation of conservative politicians and lawyers” (328). In the end, Rubin’s treatment of Hand’s decisions in Jaffree and Smith provides a vital analysis that ranges far beyond questions of constitutional conservatism. Rubin demonstrates a keen sensitivity to the foibles and unstated assumptions of both sides; he deftly weaves together the local story and its national repercussions; and he relates the complex intellectual history of conservative judicial activism in a straightforward and engaging manner. As a result, Judicial Review and American Conservatism will be of interest to historians of religion and education just as much as to specialists in legal history and American conservatism. © The Author 2018. Published by Oxford University Press.
The American Historical Review – Oxford University Press
Published: Feb 1, 2018
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