INTRODUCTION
School prayer represents a curiosity of Reagan era politics. Reagan claimed great reconstructive authority and used it to alter the government's commitments to various policies. In terms of Reagan's social agenda, the Reagan Administration secured numerous successes in accommodating religious practice and faith in the public sphere. Yet, when it came to “restor[ing] the right of individuals to participate in voluntary, non-denominational prayer in schools …”Footnote 1 conservatives never succeeded in securing the judicial victory that they sought. If anything, the Supreme Court became more skeptical of devotional exercises in public educational settings even as it permitted public monies to flow to theistic organizations and allowed the government to display religious symbols on public property.Footnote 2 The question of why conservatives scored victories on some of its religious agenda but not prayer provides insight for those interested in the activities of political entrepreneurs, political regimes, and the extent to which courts act according to the desires of presidents and partisan regimes.
The case of school prayer becomes notably curious when we consider the politics of change. Reagan claimed for himself the authority to shatter previous commitments and reconstruct the political order. His ability to do so may have been limited by “thickened” government with an enhanced ability to resist Reagan's repudiation of the old political order (Skowronek Reference Skowronek1997, 413) but Reagan retained the tools of the administrative presidency that enabled him to make over governmental institutions and agencies (Cook and Polsky Reference Cook and Polsky2005). Such entrepreneurial activity enabled Reagan to push his reconstructive agenda by altering institutions and interests in ways designed to maximize the probabilities for change, inclusive of legal change on school prayer. Moreover, Reagan affected the national judiciary dramatically and helped usher in a more conservative constitutional order. Due, in part, to the courts creating or sanctioning so many of the social policies Reagan sought to repudiate, the Reagan Administration relied heavily on the courts to reconstruct American social policy. And the leading models of judicial decision-making suggest that Reagan had good reason to rely on the courts. Theories of attitudinalism, strategic choice, and partisan entrenchment suggest that the national judiciary should have been highly responsive to Reagan Administration preferences and that the courts were in a position to realize them.
Attitudinalism portrays Supreme Court justices as single-minded seekers of their preferences (Segal and Spaeth Reference Segal and Spaeth2002). Due to the unique institutional autonomy of the Supreme Court, individual justices are largely unrestrained in their ability to vote their values and preferences. Adding to this freedom, as the court of last resort, the Supreme Court hears “hard” cases in which the law is often unclear and plausible arguments can be made to support the positions of all involved parties. Knowing that justices enjoy significant decision-making freedom, presidents nominate ideologically congruent justices to the Court to help ensure that the Court will be sympathetic to the president's agenda and priorities (Epstein and Segal Reference Epstein and Segal2005). While contingency (e.g., retirement or death) plays a healthy role in determining if the president will have an opportunity to place their stamp on the Court, the more justices a president appoints, the more likely it is that the Court will reflect his preferences. During his tenure in office, Ronald Reagan appointed three justice (O'Connor, Scalia, and Kennedy) and elevated Rehnquist to Chief Justice. While each of these appointees replaced a justice appointed by a Republican president, the Court became decidedly more conservative.Footnote 3 On the issue of school prayer, Reagan nominees were regularly mentioned in terms of their perceived sympathetic positions on school prayer and leading Supreme Court watchers believed that Reagan justices likely supported a change on school prayer (Taylor Reference Taylor1986).
In contrast to attitudinalism, the strategic choice model accounts for the environment in which judges render decisions. The Supreme Court may be quite independent but it exists in a political environment in which judges must account for their fellow justices and the other branches of government (Maltzman, Spriggs and Wahlbeck 2000; Epstein and Knight Reference Epstein and Knight1998). To make binding precedent, a justice must secure a majority coalition that may require deviation from the individual justice's ideal policy position. Justices may also recognize that rendering their preferred policy will damage the long-term success of that policy by evoking the ire of Congress, which may in turn act to alter constitutional policy or the Court's jurisdiction. Thus, it is not enough to simply account for the ideological leanings of a given jurist, rather, one must look at the political universe in which justices render decisions.
Strategic choice turns our attention to the internal political environment of the Court and the external political environment. During and after the Reagan Administration, the strategic environment appeared favorable to accommodating prayer in public schools. As noted above, at least five members of the Court were reliably conservative. Even if these conservatives were disinclined to overturn the constitutional prohibition on sponsored devotional activities in public school, justices could have plotted alternative courses of action that might have produced more favored results than maintaining the status quo policy. Moderating the terms of an opinion can result in a majority coalition and these sorts of bargains are relatively common in Supreme Court opinion writing (Epstein and Knight Reference Epstein and Knight1998, 100–105).
The external environment proved equally promising. The Court will consider the external political environment if it is perceived as hostile to the Court's policy objectives. However, in the 1960s and 1970s, constitutional amendments to permit forms of religious observance by students in public schools received majority votes in both the House and Senate.Footnote 4 Support remained vocal and sizable during the 1980s (Dierenfield Reference Dierenfield1997, 188–192). While some of members of the House and Senate may have supported the proposed amendments because they knew that the amendments would ultimately fail, it stands to reason that they were relatively indifferent to policy and that they would not act punitively if change came through the Court. Even if the median voter of Congress was not indifferent to a change in school prayer policy, the president would have to approve any type of remedial legislation and this was highly unlikely during both the Reagan and Bush Administrations. During the Clinton Administration, the executive may have been opposed to an attempted legislative override or rebuke but those would likely have only come during the first two years of the term as the Republican Party assumed control of the House and Senate in 1995. Finally, it should be noted that, even if the terrain was unfavorable, the Court did not shy away from inter-departmental conflicts regarding religious liberty during this same timeframe. The Court sparked conflict with its decision in Employment Division v. Smith Footnote 5 and subsequently rebuked Congress's attempt to override the decision when it struck down the Religious Freedom Restoration Act. Thus, the strategic terrain did not appear to impede the Court.
Given that the president's party can stock the federal courts with sympathetic judges, and that federal judges enjoy life tenure, several scholars note that political parties can use courts as “temporal extension[s] of partisan representation.” Such partisan entrenchment serves as an “especially important engine of constitutional change” (Balkin and Levinson Reference Balkin and Levinson2001, 1067). Courts can also be used to achieve “a specialized subset of everyday policy making and/or particularized decision making” akin to administrative agencies or independent regulatory commissions (Gillman Reference Gillman and Kersch2006, 138). Thus understood, courts help achieve policies — in both the short and long term — favored by the party that “captured” the national judiciary (Gillman Reference Gillman2002).
There is little doubt that Reagan “captured” the judiciary. Reagan appointed 47% of the federal judiciary by the end of his second term. Due to institutional innovations detailed below, Reagan also appointed judges who were “aggressive supporters of the administration's judicial philosophy” (Goldman Reference Goldman1989, 327). Thus, Reagan successfully extended the ideology of his administration through the courts and these judges helped give rise to a conservative legal movements and a new brand of conservative constitutionalism (see Teles Reference Teles2008; Keck Reference Keck2004). Given this judicially-led temporal extension of the Reagan regime, the national judiciary appeared poised to realize Reagan's social agenda and school prayer was a prominent aspect of this agenda.
Yet, despite favorable conditions for change, the Court failed to alter its skepticism of devotional activities in public school. This failure begs for a better account of why courts provide resilience to the Reagan Administration's efforts at reconstructing school prayer policy. As will be demonstrated below, these theories fail to satisfy because they suggest an artificial judicial malleability to presidents and partisan regimes. Judges practice a unique form of politics and this form of politics relies on support structures that must exist before change can be realized (Epp 1998). What, then, is needed is, first, a comprehensive account of Reagan's entrepreneurial effort to secure change and, second, an account of the demand (i.e., judges) and supply (i.e., litigants) of legal change.Footnote 6 Scrutinizing entrepreneurial endeavors does more than elucidate the single case of school prayer, it draws attention to how “political and institutional complexity shape prospects for change.” Scrutinizing the way political actors attempt to alter policies and institutions “focuses our attention on the boundaries between institutions and the complex characteristics of the American political system as a whole” (Sheingate Reference Sheingate2003, 186). It also draws our attention to the difficulties of transforming both the demand and supply side of legal change in a timely fashion. The institutional characteristics that define legal decision making and the diffuse nature of legal support structures makes judicial boundaries less permeable to presidential and partisan preferences than the models of judicial decision making suggest.
We proceed by first providing historical context to highlight the political landscape that defined the battle over school prayer in the latter half of the 20th century. Next, we explore entrepreneurial activity to revitalize the constitutionality of school prayer and the limitation of such efforts in three contexts: the legislative arena; the supply side of legal change; and the demand side of legal change. Finally, we conclude with a brief discussion of what the politics of school prayer suggest for understanding judicial decision making in the context of presidential and partisan regimes.
ENGEL, SCHOOL PRAYER, AND CONSTITUTIONAL POLITICS
Prior to the 1960s, school prayer was not a matter of national public debate. State and local school boards freely set devotional practices as part of their educational activities. National political elites took no positions on the matter as it was not a component of the national agenda. All that changed in 1962 when the Supreme Court announced its decision in Engel v. Vitale. In Engel, the Court struck down the policy of the New York Board of Regents to begin each day with a brief, nonsectarian prayer that was written by state officials. In an 8-1 decision, the Court ruled, that if the Establishment Clause of the First Amendment meant anything, it “must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.”Footnote 7
School prayer was both a popular and widely supported practice within the American educational system. Half of the states required or permitted Bible reading. Approximately 33% of the states held devotional services during the school day, and nearly 79% of American favored religious practices in public schooling (Dierenfield Reference Dierenfield1997, 170). Not surprisingly, then, the Court's decision in Engel was wildly unpopular. More mail was sent to the Court in response to Engel than any other case (Powe Reference Powe2009, 260) and scholars describe Engel as one of the most divisive decisions in the Court's history (Pfeffer Reference Pfeffer1967, 466). Political elites were quick to respond. Every representative who took to the floor of the House in response to Engel condemned the decisions (Blanshard Reference Blanshard1963, 52–57). The Senate was no less hospitable with many southern Democrats drawing parallels between Engel and Brown v. Board of Education Footnote 8 and “an outrageous edict which has numbed the conscience and shocked the highest sensibilities of the nation” (Lewis Reference Lewis1962, 1).
The effect of Engel was to alter the politics of school prayer by shifting it to a constitutional dimension. Pro-prayer public officials could not simply legislate Engel away as overturning the case would take either a constitutional amendment or the Court to create greater space for prayer by defining exceptions to Engel. Thus, due to the unpopularity of Engel, it was not surprisingly that Congress took up the call to enact a constitutional amendment that would permit devotional activities in public schools.
Article V of the United States Constitution requires a proposed constitutional amendment gain at least two-thirds majorities in both the House of Representatives and the Senate and be ratified by at least three-fourths of the states. Scholars confirm that this process is one of the most difficult amendment procedures in the world, which makes successful amendment highly unlikely (Lutz 1994; Levinson Reference Levinson1995). Adding to the difficulty, critical veto points in the legislative process, such as committee and subcommittee chairmen, provide ample opportunities to kill off amendments. In the case of the proposed school prayer amendments of the 1960s and 1970s, every last one was either killed in committee or failed to achieve the two-thirds majority requirement.Footnote 9
Despite the difficulties associated with amending the Constitution, school prayer continued to be a salient issue and an ever more partisan one. When Engel was first decided, Republican opposition was only moderately stronger than Democratic opposition. But a remarkable thing happened on the way to the 1980s, the issue became partisan as southern Protestants increasingly identified with the Republican Party and the Republican Party altered its positions to woo their votes. The 1972 Republican Party Platform endorsed the constitutionality of school prayer “particularly, by school children while attending public schools.” In 1976, the Party Platform explicitly called for a constitutional amendment. Gerald Ford in Reference Ford1976 stated his preference for a constitutional amendment to ensure voluntary prayer in public schools. The issue of school prayer alone may not have driven southern Protestants to the Republican Party but it was a major component of the conservative social agenda that helped Ronald Reagan ascend to the White House.
REAGAN AS LEGISLATIVE ENTREPRENEUR
The presidency is an institution uniquely situated to change the political order they inherit. Presidents can use their independent powers of the office to construct new political arrangements so as to bring about fundamental changes to the political order (Skowronek Reference Skowronek1997, 20). Additionally, the modern presidency is endowed with unique rhetorical properties that create expectations for leadership and opportunities to secure new commitments (Tulis Reference Tulis1987). Presidents set the agenda, build popular support for that agenda, and use that support to persuade other political elites to support their policies (Kernell Reference Kernell1986). The president also enjoys significant influence over the bureaucracy and can utilize political appointments to gain control over these agencies so as to enable presidents to get what they want (Nathan Reference Nathan1983; Moe Reference Moe, Chubb and Peterson1985). The overarching reconstructive authority of the president may be constrained by the growth of the American state (Skowronek Reference Skowronek1997) but scholars have noted how entrepreneurial activity can still have important disruptive effects, particularly when relying on administrative tools (Cook and Polsky Reference Cook and Polsky2005). Thus, scrutinizing entrepreneurial efforts to affect institutional arrangements brings into focus the extent to which the administrative means of the modern presidency can affect the creation of legal policy.
Entrepreneurial activity consists of three essential attributes. Entrepreneurs, first, shape political debate by redefining problems; second, innovate in the creation of new policy; and third, entrench innovations such that they have transformative effects (Sheingate Reference Sheingate2003, 188). Regarding national school prayer policy, Reagan Administration action was distinctly entrepreneurial. First, as president, Reagan occupied a unique rhetorical position that enabled him to frame school prayer in broad, inclusive, and traditionalist ways. The debate over school prayer was not new but Reagan helped shape the political landscape by framing school prayer as inclusive and traditional. He argued devout school children should be able to adhere to their faith and not be excluded from the public sphere, especially since school prayer as “a fundamental part of our American heritage and privilege” (Reagan Reference Reagan1982a). Second, the Reagan White House invested significant political capital and human resources in the attempt to craft new prayer policy. This effort included promoting nascent religious interest groups inside and outside of Washington, D.C. and fostering a cross-party legislative coalition of social conservatives. Third, Reagan's embrace of constitutionalized school prayer policy reflected a desire to entrench protection for the sacred in public schools.
Reagan initially took a legislative path in the hopes of securing a constitutional amendment. The Reagan Administration's embrace of constitutional amendment served several purposes. Engel guaranteed that constitutional change outside of the courts required an amendment. But constitutional amendment also provided a means for social conservatives to consolidate prayer policy by enshrining its permissibility in the Constitution. Additionally, school prayer enjoyed wide public support so Reagan could score political points at little cost simply by advocating for an amendment. To these ends, Reagan proposed his own school prayer constitutional amendment on May 17, 1982 (Congressional Quarterly Almanac 1982, 405).
Reagan framed the school prayer amendment as restoration of a deeply rooted American tradition in an effort to delegitimate Engel. Reagan claimed that “[f]rom the early days of the American colonies, prayer in school was practiced and revered as an important tradition. Indeed, for nearly 200 years of our history, it was considered a natural expression of our religious freedom. And then in 1962, the Supreme Court expelled God from America's classrooms” (Reagan Reference Reagan1984a). Such rhetorical moves set up a construction of the religion clauses that defined their purposes as “to protect not government from religion, but religion from government tyranny” (Reagan Reference Reagan1982b). Additionally, Reagan (Reference Reagan1984a; see also Reference Reagan1984b, Reference Reagan1984c) regularly urged for “the people of the country to make their voices [in favor of school prayer] heard.” Reagan's use of the bully pulpit bolstered on-going mobilization efforts by groups like the Moral Majority, Christian Voice, Concerned Women for America, and the growing network of broadcast evangelicals (Hertzke Reference Hertzke1988, 165). As Americans turned away from New Deal/Great Society social liberalism, wide popular support, a reframed issue, and significant mobilization efforts appeared to create a wellspring for change.
Yet, despite sympathetic conditions, Reagan's efforts at amendment met the same fate as prior attempts to pass school prayer amendments. Reagan gave the school prayer amendment a national voice but a notable feature of early mobilization was its uni-dimensionality. The efforts of religious conservatives occurred almost exclusively at the grassroots level and it lacked an effective, coherent national lobby necessary at the micro-legislative level (Hertzke Reference Hertzke1988, 70–87). The religious lobby had yet to fully institutionalize their participation inside the Beltway and, as a result, depended on sectional-based popular mobilization. Fragmented and diffused support for reform enabled critical veto points to once again prove insurmountable. Democrats on the Senate Judiciary Committee, united in their opposition to the prayer amendment, successfully kept the amendment from being brought out of committee in 1982 (Dierenfield Reference Dierenfield1997, 189). In 1984, the amendment was reconsidered. Reagan actively lobbied the Senate, holding a series of meetings at the White House and making regular telephone calls. But even with an “unusual” and “stepped up effort by Mr. Reagan,” the amendment failed to reach the two-thirds majority (Weisman Reference Weisman1984, 1).
Constitutional amendment proved out of reach but the effort to amend the Constitution aided in securing ordinary legislation that enabled social conservatives to claim a small victory on school prayer. Even as the school prayer amendment was being defeated in the spring of 1984, Republicans began to shift their attention to securing equal access to public school facilities for voluntary student religious groups. Reagan (Reference Reagan1984d) increasingly called for such legislation, including on the day the amendment was defeated. This legislation enjoyed an easier pathway to enactment due to the mobilization that occurred to secure constitutional amendment, a new framing of the issue, and the simple majority requirement.
Conservative lawmakers, religious activists, and an influential White House formed a coalition made savvy by the battles over the prayer amendments and well prepared to fight parliamentary maneuvers employed to kill off an equal access bill. Tip O'Neill (D-MA), Speaker of the House, and Don Edwards, Chairman of the House Judiciary Subcommittee on Civil Rights, both initially opposed passage of equal access legislation as a backdoor approach to securing school prayer (Schwed Reference Schwed1984). However, Reagan and his allies reframed the issue as “religious speech by citizens” rather than as religious exercise. A small network of religiously affiliated interest groups already in D.C. (e.g., the Baptist Joint Committee and the National Association of Evangelicals) successfully used the reframed issue of religious access to secure the support of legislators and groups that had objected to the prayer amendment (e.g., the ACLU). These groups ensured that access protections would extend to political, philosophical, and religious groups and once it was clear that “Trotskityes” and “gay rights activitsts” were on the same footing as religious groups, opposition to the measure largely vanished (Taylor Reference Taylor1984). The Equal Access Act (EAA) passed the Senate 88-11 and the House bill passed 337-77 (Congressional Quarterly Almanac 1984, 490–491). Reagan signed the EEA into law two weeks later.
To recap, the Reagan Administration sought but ultimately failed to secure a constitutional amendment on school prayer but the network of grassroots activists, religious lobbyists, and conservative lawmakers proved vital for securing the Equal Access Act of 1984, which created greater accommodation for religious activity in public schools. Reagan pledged policy change on religion in American public education and he employed his unique, transformative position to overcome entrenched resistance. Despite “unrealistic” chances of “even incremental legislation in support of Reagan's social policies,” (Yalof Reference Yalof2001, 133) the creative recombination noted above proved formative. The legislative effort to secure school prayer yielded the EAA and demonstrated that legislating the social conservative agenda could bear fruit. However, Reagan desired more than equal access for devotional activities and also to entrench such protection. This could only be secured through constitutional change and constitutional change had to come from the Supreme Court.
REAGAN AS LITIGATION ENTREPRENEUR
The EAA was a notable victory in the legislative arena where opponents occupied crucial veto points. Yet, the inability of the Reagan Administration to create constitutional space for school prayer led it to push for judicial transformation of First Amendment jurisprudence. Presidents regularly attempt to use courts to transform policy much in the way that they rely on administrative agencies (Gillman Reference Gillman2002). This is particularly true after a president has affected the decision-making bias of an institution through careful attention to the appointment process (Nathan Reference Nathan1983; Gillman Reference Gillman and Kersch2006). If the “Reagan judiciary” acted in a way consistent with a conservative White House and a Senate largely controlled by Republicans,Footnote 10 then we might expect equal, or perhaps greater,Footnote 11 traction for school prayer in the national courts. However, if anything, school prayer jurisprudence moved further from constitutional sanction during the Reagan and post-Reagan era. This hostility occurred despite a partisan regime that desired change, an institutionalized effort to secure change through judicial appointment, and institutional change at the Office of the Solicitor General designed to facilitate conservative legal arguments before the High Court. Attention to this failure highlights the limitations of entrepreneurial activity to transform school prayer jurisprudence and, more generally, the relative impermeability of the judicial boundaries to goals and agendas of the presidential administrations.
Institutional Change to the “Demand Side”: Reagan's Judicial Strategy
Reagan's aspirations for the national judiciary included both the appointment of “transformative” justices and creating what Steven Teles (Reference Teles2009) referred to as a “transformative bureaucracy.” These were not mutually exclusive but part of the same transformative agenda. Reagan institutionalized previously informal working relationships and job performance and, thereby, created a greater role for the Administration in the selection process (Goldman Reference Goldman1997, 345). The motivations for these new institutional pathways were well advertised as he pledged on the 1980 presidential campaign trail to appoint conservative jurists who would carry forth a conservative agenda. Social issues loomed particularly large in the context of judicial selection and the Administration asserted greater control over the selection process to ensure that these ends would be achieved.
Capturing the court means altering the “demand side” of legal change. Judges sitting on the federal courts are the consumers of legal arguments and those in a position to validate legal claims. As noted above, shifts in electoral power — resulting in new power-holding coalitions — impact legal change through the president's appointment power but not all presidents succeed equally in their quest to appoint ideologically congruent judges. Rather, success is predicated on the ability of a president to institutionalize their transformative vision for the courts. Reagan proved particularly adept at altering institutional pathways to ensure conservative jurists were appointed to the bench.
Institutionalization was two-fold. First, the Administration created the Office of Legal Policy (OLP) in the Department of Justice. The OLP was given primary responsibility for screening potential selections and it did so by systematized, extensive interviewing process (Goldman Reference Goldman1989, 319). Two new positions were created — the assistant attorney general for legal policy and special counsel for judicial selection — to ensure that Administrative objectives would have priority in the OLP. Second, Reagan created the President's Committee on Federal Judicial Selection (CFJS). The CFJS was tasked with identifying political, philosophical, and ideological concerns and general congruity with Administration values. The CFJS located discussions over selection in the White House rather than outsourcing it solely to the Department of Justice. The overlapping scrutiny helped to ensure that nominees “would be sympathetic to the social agenda positions of the administration” (Goldman Reference Goldman1989, 327).
By the end of his second term, Reagan had appointed 47% of the federal judiciary and vetted his selections to ensure they embraced “strict construction of the Constitution rather than a liberal agenda based on a concept of judicial activism” (Abraham Reference Abraham1999, 281). Scholars of judicial appointments credit Reagan with being highly successful in ideological transformation of the federal judiciary. As Sheldon Goldman (Reference Goldman1989, 327) observed, the Administration — particularly under the leadership of Attorney General Edwin Meese — successfully “fine tun[ed] the selection process to place on the bench younger, vigorous, more aggressive supporters of the administration's judicial philosophy that would indeed constitute a lasting Reagan legacy on the courts.”
Institutional Change to the “Supply Side”: Reagan's Office of the Solicitor General
While sympathetic judges may be necessary, it is not necessarily sufficient to guarantee legal change. Courts enjoy substantially less agenda control than many political institutions and are constrained by the degree to which legal arguments must be viable in the wider legal community (Teles Reference Teles2008, 12). For courts to alter existing legal policy, they must wait for cases to be brought that challenge the existing policy equilibrium. Even when litigants bring challenges, the degree of change is constrained by the disciplining norms of the legal community. These features of legal change are outside of the control of individual judges and, instead, require “supply side” action by litigants, legal institutions, and the wider legal community, which in turn requires financial, intellectual, and organizational resources (Epp 1998).
Few organizations have resources greater than the legal bureaucracy of the federal government. Of particular importance, the Office of the Solicitor General (OSG) controls the appeals of the United States government. The OSG has been described as “a small, elite law firm that has been populated by some of the greatest legal minds and attracts the best staff attorneys” (Pacelle Reference Pacelle2003, 5). Before the Supreme Court, its influence and success are unmatched and this provides unique opportunities to employ litigation strategies that will result in policies favored by the sitting Administration.
Yet, despite the influence of the OSG before the Supreme Court, it is almost exclusively staffed with career lawyers, not political officials. Career lawyers, who often enjoy a long tenure in the OSG, are less concerned with Administrative priorities and more concerned with incremental doctrinal development and maintaining the OSG's long term capital. In essence, the institutional mission of the OSG “present[s] a formidable dilemma for a solicitor general who wants to push the president's agenda” (Pacelle Reference Pacelle2003, 39). This is particularly the case when a transformative president attempts to reject and reconstruct commitments embedded in Supreme Court precedent.
Such was the case early in the Reagan Administration. Leading officials believed that career lawyers were hampering the Solicitor General (Rex Lee) in crafting arguments in line with Administration preferences, particularly in religion cases. In Bob Jones University v. United States,Footnote 12 the Administration sided with the University's claim of religious freedom to prohibit interracial dating and marriage among its student body but Lawrence Wallace, a careerist who argued the case for the OSG, initially supported the IRS's denial of tax-exempt status to Bob Jones University when the OSG asked the Supreme Court to hear the case. The Administration was forced to write its own brief and applied significant pressure on Wallace until he was willing to sign the Administration's brief (Caplan Reference Caplan1987, 51–64). From the vantage point of the Administration, its ability to make transformative arguments was constrained by the lack of political influence within the OSG. To give the Administration greater control over the OSG, particularly in civil rights cases, the position of Counselor to the Solicitor General and Deputy Solicitor General was created. The new position, initially filled by Paul Bator of Harvard Law School, bore the moniker of political deputy and helped ensure that Reagan Administration positions had equivalent voice to the careerist choir (Fried Reference Fried1991, 28).
The addition of the political deputy was considered part of a “dramatic staffing shift in the 1980s” (Salokar Reference Salokar1992, 62) and its effect was notable, particularly in the area of the religion clauses. Paul Bator led the OSG's efforts in Lynch v. Donnelly,Footnote 13 which netted Reagan a victory when the Court reached the rather counterintuitive conclusion that a crèche display fulfilled a secular legislative purpose and, therefore, survived the Lemon test.Footnote 14 Bator also played a major role in crafting the OSG's brief in Wallace v. Jaffree Footnote 15 and argued the case before the Court. But institutional innovations within the OSG designed to better enable the marshalling of resources in the cause of jurisprudential change failed to realize an alteration to school prayer policy. As will be demonstrated below, Wallace is informative as to the degree to which the innovations to the supply side of legal change failed to penetrate the boundaries of the very legal institutions in a position to transform school prayer policy.
LIMITATIONS ON CONTROL OF THE “DEMAND SIDE”: JUDICIAL SELECTION AND THE SUPREME COURT
The Reagan Administration created new means of securing judicial ideologues and was quite successful in doing so but there were at least three intervening factors that limited the impact of transformation in Supreme Court school prayer jurisprudence. First, Reagan made a critical choice while campaigning in 1980. He pledged, “One of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find” (Abraham Reference Abraham1999, 282). Reagan injected one additional variable into his judicial calculus and the results were notable. Reagan's ultimate selection, Sandra Day O'Connor, proved reliably conservative on issues like federalism and criminal due process but was significantly less doctrinaire on social issues including school prayer. O'Connor's potential for moderate social jurisprudence was well-known before her selection and netted protests from prominent social conservatives like Jerry Falwell, John Willke, and Jesse Helms (Abraham Reference Abraham1999, 284; Yalof Reference Yalof2001, 140). In essence, Reagan's first-order social goals clashed with his electoral strategy (i.e., broadening his electoral coalition by wooing women) and the result was the selection of a justice less reliably conservative on the Administration's social priorities than subsequent judicial selections.Footnote 16
Second, at the moment when Reagan had his greatest opportunity for success, his ability to secure a transformative justice was most constrained. Reagan enjoyed Republican control of the Senate for six of his eight years in office. In the final two years, the Democrats controlled the Senate and Reagan's difficulties filling Justice Lewis Powell's seat demonstrated how formidable this constraint can be. The nomination of Robert Bork indicated the Reagan Administration's commitment to push the Court further to the right but it also failed to account for Democratic resolve to place what limitations they could on the transformation. The failure of Bork's nomination (and the implosion of Douglas Ginsburg's brief nomination) revealed that the Administration could not press its judicial agenda in the same way as the previous six years. The nomination of Anthony Kennedy, a well-regarded, uncontroversial center-right moderate,Footnote 17 proved detrimental to altering school prayer jurisprudence as Kennedy repeatedly voted against efforts to bring prayer back into public educational settings.Footnote 18 In this case, the Reagan Administration's ability to transmute its preferences onto the Court was constrained by the role of the Senate in judicial confirmations and the existence of divided government. Instability in electoral politics limits the degree to which regime objectives can be transferred to the national judiciary. Sustained change in American politics comes at a cost of sustained electoral victories, in part, due to the difficulty of capturing all departments of government. The loss of the Senate in the Administration's final two years tempered the scope of its success.
Third, Reagan's desire to reconstruct the national judiciary was born not simply out of raw policy preference but also a philosophical commitment that privileged judicial restraint over judicial activism. As Reagan opined in Reference Reagan1985, “I'm very proud of our record of finding highly qualified individuals who also adhere to a restrained and truly judicious view of the rule [sic.] of the courts — or the role of the courts under our Constitution.” Paul Bator put it this way, “We ask that [judges] be scrupulous not to rule, not to act, to leave the exercise of power to others, where the law does not justify judicial intervention” (Caplan Reference Caplan1987, 63). Grover Rees, special assistant to Attorney General Meese, stated it slightly differently, “We look for judicial philosophy, not ideology. We don't want judges enacting conservative ideology from the bench any more than we want them enacting liberal ideology” (Weinraub Reference Weinraub1985). Even if those statements downplay conservative aspirations to remake American social jurisprudence, it picks up on the ideological tensions between judicial restraint as an institutional practice and conservative social policy as an aspect of a political ideology.
In the matter of school prayer jurisprudence, perhaps it is no great surprise when justices, selected, at least in part, due to their restrained judicial philosophies, act restrained in the application of precedential line of cases dating back to 1962. Justices O'Connor and Kennedy noted this deference to precedent in school prayer opinions they either penned or joined. In Wallace v. Jaffree, Justice O'Connor rejected Justice Rehnquist's argument that the Court's school prayer jurisprudence should be discarded because it is inconsistent with Framer's intent. Rather, she argues that the Court should uphold and refine the Lemon test to create “a principle for constitutional adjudication … that is also capable of consistent application.”Footnote 19 In Lee v. Weisman, Justice Kennedy wrote, “the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one.”Footnote 20 Justice O'Connor joined Justice Souter's concurrence that in reference to the Engel line, “Such is the settled law. Here, as elsewhere, we should stick to it absent some compelling reason to discard it.”Footnote 21 By the time the Court decided Santa Fe Independent School District v. Doe, the adherence to the Engel line was so entrenched that the majority opinion, authored by Justice Stevens and joined by O'Connor and Kennedy, does not even bother to address the need to follow precedent despite Chief Justice Rehnquist's familiar originalist complaint in dissent.Footnote 22 Judicial restraint was part of Reagan's transformative vision but restraint as a judicial philosophy also limited the impact of his transformative agenda through the national judiciary.
Presidents and their party have ample opportunity to influence the demand side of legal change. Reagan certainly acted to maximize this opportunity but aggregate success did not necessitate particular victories. School prayer received as much attention in Reagan's first term as any other social issue, save abortion,Footnote 23 but a series of intervening factors limited the potential for change. Electoral success is not sufficient to bring about legal change in all areas. Judges, even highly sympathetic judges, have different priorities, commitments, and practices than do the elected official who appoint and confirm them. Partisan regimes certainly influence courts and institutional innovations can sharpen that influence but the transubstantiation of partisan politics to law is imperfect and certain regime preferences are left out.
LIMITATIONS ON CONTROL OF THE “SUPPLY SIDE”: THE MULTIPLE COMMITMENTS OF THE SOLICITOR GENERAL
The addition of a political deputy to the Solicitor General's staff was a provocative and useful innovation. As Rex Lee observed, “It just makes sense to have someone other than the solicitor general himself who … is not only a very fine lawyer but also comes from a politically sensitive background and who regards as part of his or her responsibilities not just the legal aspects of the job but the broader governmental ones as well” (Salokar Reference Salokar1992, 62). By crafting a means of greater influence over the OSG, the Reagan Administration improved its opportunities to supply the courts with transformative argument that were still perceived as viable. However, even with greater political presence in the OSG, its ability to craft transformative arguments is constrained by its unique position in a president's administration. The OSG is tasked with multiple commitments that are in tension with one another. One scholar notes that the OSG “must pay heed to the justices, legal norms, the politics of the administration, public opinion, and the needs of other agencies and divisions” (Salokar Reference Salokar1992, 69). Moreover, the OSG must protect its unique institutional relationship with the High Court. Administration priorities can conflict with upholding legal norms — in this case doctrinal development — and protecting the prestige of the office. In other words, the Administration may seek to use the OSG as a resource to push legal change but members of the OSG jealously guard the unique relationship between it and the Court.
School prayer was case in point. Reagan (Reference Reagan1982a) repeatedly stated that “prayer in school was practiced and revered as an important tradition” and that Engel was an illegitimate deviation from this tradition. When it came time to make this argument before the Supreme Court in Wallace, the Administration urged the OSG to adopt the position of the District Court for the Southern District of Alabama, which held that the establishment clause was not incorporated against the states and, thus, state sponsored classroom prayer did not violate the Constitution.Footnote 24 Such an argument would have pressed Reagan's transformative agenda, yet, the OSG balked at suggesting the Court upend 40 years of establishment clause precedent and, arguably, 65 years of incorporation precedent. The OSG lawyers involved in the Wallace litigation noted that such an argument lacked the proper intellectual resources and, thereby, would have damaged the OSG's relationship with the Court. Reagan's OSG political deputy, Paul Bator, noted that the “intellectual preparation had not been done.” Moreover, they lacked the appropriate “lower-court decisions and law-review articles and other expressions in the legal culture showing serious and thoughtful controversy about a matter. In the case of the prayer decisions, the intellectual preparation had not been done …” (Caplan Reference Caplan1987, 101–102). Rex Lee, Reagan's first Solicitor General argued that if he would have made the argument urged by the Administration, he would have “destroyed — with one filing — the special status that I enjoyed by virtue of my office. I would have also acquired a new status, equally special. The Court would have written me off as someone not to be taken seriously” (Lee 1986, 600–601). Rather than argue the Administration's position that state-sponsored devotional activities were constitutional, the OSG took the more prudential approach of suggesting that a brief moment of stillness in which students could, if they so chose, dedicate their day to God did not violated the First Amendment.Footnote 25 Even if it had been successful, this argument would not have transformed the constitutionality of school prayer as many social conservatives desired. More problematic still, it failed to reconcile the purported secular moment of silence with the Alabama legislature's express intention to reinvigorate prayer in their public schools and the Court struck down the Alabama moment of silence.
The actions of the White House suggest that the Administration believed their electoral victories gave license for legal change. Yet, the comments of Reagan's political officers in the OSG are insightful. The OSG is certainly influential but that influence is tied to the degree to which the OSG makes arguments supported by a series of social conventions tied to legal authority. For law to change there must be sufficient support for that change among authoritative institutions. When Bator referenced lower court decisions, law review articles, and other indicia of legal culture, he was looking for the conventions necessary to legitimate the argument. The OSG can certainly help foster and legitimate new conventions but it is unlikely to do so alone. The OSG relies on a network of ideas fostered by a legal community of which the OSG is only one important member. Electoral victories may demonstrate that there is popular support for a president's positions but, absent the necessary support structure, litigants seeking to legitimate partisan policies in the courts will be unsuccessful. As was the case in Wallace v. Jaffree, the OSG balked at jeopardizing its standing with the Court by offering novel, transformative arguments in advance of a comprehensive support structure. Not even the addition of the political deputy significantly altered commitment to these norms.
CONCLUSION
Reagan's entrepreneurial activity helped fashion a legislative coalition and institutionalized pathways for the transmutation of Administration preferences into national legal policy. The combination of Reagan's egalitarian-laced rhetoric on equal access and the nascent religious lobby secured a legislative coalition willing to pass the Equal Access Act. Reagan's creation of the Office of Legal Policy and the Committee on Federal Judicial Selection prioritized policy and philosophical criteria in judicial selection and ensured Reagan judges would be reliably conservative. Establishing a political deputy in the Office of the Solicitor General ensured greater administration presence in legal advocacy before the Supreme Court, thereby, providing a counter-balance to OSG careerist perspectives. Despite these innovations, Reagan's creative recombination netted less than desired for the social conservative agenda. Reagan clearly targeted school prayer along with the likes of abortion and affirmative action as part of his reconstructive vision. Yet, following the failure to pass a constitutional amendment, policy change on school prayer and other issues was contingent on the cooperation of legal institutions vested with unique norms, rules, incentives, and constituents. These unique institutional features demonstrate the fragmentation in American governance and the difficulties political regimes experience in realizing their objectives across differing political terrain. Part of Reagan's reconstructive agenda was stymied by a judicial system less permeable to the conservative vision for prayer in America's public schools.
For those interested in the politics of legal change, the case of school prayer offers some important considerations. Scholars focused on the demand side of legal change note the importance of elections and the corresponding partisan regimes they bring to power (Balkin and Levinson Reference Balkin and Levinson2001; Gillman Reference Gillman2002; Segal and Spaeth Reference Segal and Spaeth2002). Scholars focused on the supply side of legal change note the importance of support structures that create conditions ripe for change (Epp 1998; Teles Reference Teles2008). Reagan attempted to manipulate both the demand and supply side of legal change to achieve his transformative vision. Yet, for school prayer and many other social issues, these alterations did not manifest the desired change. Nor was this simply a case of the courts lagging behind the political branches. The accommodation of devotional activity in public schools gained no more momentum after Reagan left office despite the rise of New Christian Right legal activism (see Brown Reference Brown2002).Footnote 26
Presidential influence over the market for legal change, while significant, is encumbered by the complexity of the American political system. Electoral victories by partisan regimes do not guarantee success over policy areas in which courts enjoy significant institutional independency. Securing policy change requires successful manipulation of the demand and supply side and, as Reagan's experience indicates, a presidential administration or a partisan regime controls only a small portion of the markets for legal change. And this control can prove elusive. In the case of school prayer, political and institutional features of the courts and OSG interfered with Reagan's ability to push his transformative effort through the federal judiciary. Even as support on the supply side grew through the efforts of the New Christian Right and more members of the Court embraced originalist arguments that promised greater results for pro-prayer advocates, school prayer as a national issue lost its salience and was superseded by other social issues. This raises a critical point in the politics of legal change: the conjuncture of the supply and demand sides.
Scholars of American political development observe the importance of timing in political analysis. It is well established that the “temporal ordering of events … has a significant impact on outcomes” (Pierson Reference Pierson2004, 54). Attention to timing and sequence can advance analysis past questions of what happened or did not happen into questions of when things happened and the relationship between one event to the other. In the case of school prayer, Reagan's efforts failed, in part, because of the non-synchronicity of the demand and supply side of legal change. Reagan's influence over the national judiciary (i.e., the demand side) is undeniable but Reagan's push to make school prayer constitutional occurred before a fully developed support structure (i.e., the supply side) existed. Cause lawyers from the New Christian Right emerge following the failure of “the federal bench to actively promote the conservative Christian agenda” (Brown Reference Brown2002, 24). Yet, when it came to Reagan's efforts to transform school prayer policy, it appears that the support structure simply emerged too late. By the time a comprehensive support structure arguably emerged in the 1990s and 2000s, school prayer lost its salience in national politics. This is not to say that social conservatives or conservative political elites were not in favor of devotional activities in public schools but rather that other issues became the focus of the New Christian Right. Public schooling increasingly came to be seen as a lost cause and political efforts shifted to provide tax incentives to promote home schooling and/or private Christian education (Wilcox and Larson Reference Wilcox and Larson2006, 144–150).Footnote 27
School prayer is, of course, only one case but it draws our attention to the failed conjuncture of the demand and supply side and points us to an important lesson in the politics of legal change. Courts are considered a part of the dominant national alliance (Dahl Reference Dahl1957), and indeed they often act the part. Yet, courts are autonomous and politically differentiated institutions from partisan governing coalitions and behave under unique rules and respond only after certain legal conditions have been satisfied. Through innovations, presidents can wield influence over judicial selection, particularly when the president carefully crafts institutions specifically for this purpose, but presidents use judicial selection for many purposes, including electoral advantage. The multiplicity of purpose within judicial selection can cut against achieving certain partisan objectives. The president may be able to influence the supply side of legal change through the OSG but the OSG, while highly influential, cannot, in and of itself, provide the support structure for legal change. Even when a president effectively stacks the national judiciary with sympathetic judges at a time when the support structure exists, legal change may depend on the salience of the issue.
One case is not sufficient to provide a comprehensive theory of the limitations on presidential or partisan transformation of legal policy. Yet, the case of school prayer suggests that political scientists should be cautious in their treatment of courts as agents of the dominant presidential or partisan regime. The difficulty of controlling both the demand and supply side of legal change make the institutional boundaries of the national judiciary difficult for political regimes to penetrate, particularly for discrete policies. Entrepreneurial activity may aid in the politics of change but it is insufficient to guarantee the conjunction of courts and legal ideas in a timely fashion. While the effects of presidents and partisan regimes are consequential, the case of school prayer should make us skeptical in treating courts as mere instruments of their policy objectives.
