The recently completed U.S. Supreme Court term featured the sweeping handiwork of the new Republican supermajority, who upset long-standing precedents in pursuit of their conservative vision of American society. With the three liberal justices virtually always in dissent, the court eliminated women’s right to reproductive choice, restricted states’ abilities to enact gun control statutes, and crippled the federal government’s efforts to combat climate change. The majority justices were so keen to enhance the role of religion in public schools that they blew past an analogous principle of judicial ethics that every one of them had accepted in the past.
It might seem obvious that the First Amendment’s Establishment Clause would prohibit a high school football coach from leading his students in Christian prayer while kneeling at midfield following a game. The coach, after all, is the epitome of an authority figure, with the sole and unreviewable power to decide which kids will get meaningful playing time and who will be recommended to college scouts. But that is exactly what Coach Joseph Kennedy did at Bremerton High School in Washington State, eventually attracting crowds of players from his own and even opposing teams. He refused to stop when ordered by the school board, which led to his firing. Kennedy took his case to the U.S. Supreme Court, where the six-justice majority ruled in his favor in Kennedy v. Bremerton School District, stating that Kennedy had been impermissibly punished “for engaging in a personal religious observance.”
But what about the rights of any non-Christian students who might have experienced silent pressure to join the prayer, or perhaps felt alienated or even outcast because they refrained? That is no concern of the court’s, according to Justice Neil Gorsuch‘s majority opinion, because the Bremerton School District “admitted that it possessed ‘no evidence that students have been directly coerced to pray with Kennedy.'” In other words, the coach’s discomfort over being told to pray off-field takes precedence over any students’ sense of religious intimidation or exclusion, so long as there is insufficient “evidence that coercion actually occurred.”
Justice Sonia Sotomayor‘s dissenting opinion, joined by Justices Elena Kagan and Stephen Breyer, clearly revealed the flaws in the majority’s “toothless version of the coercion analysis,” which failed to acknowledge the “unique pressures faced by students when participating in school-sponsored activities.” It should not have been necessary for the dissenters to explain that “indirect coercion” is a very real phenomenon in high schools, and that “subtle coercive pressures,” especially from teachers and coaches, may impel students to participate in religious activities “they might otherwise reject.” This is especially true in the case of a football coach, who is in a position to provide players with discretionary benefits, such as “extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”
The problem of subtle or indirect coercion should have been familiar to the justices in the majority because it is one of the most important concepts in judicial ethics. The Code of Judicial Conduct prohibits judges from soliciting funds, or membership, for charitable or religious organizations, or even attending a fund-raiser as a speaker or guest of honor. Likewise, a judge may not engage in political activities, including endorsement and fund raising, and may not voluntarily testify as a character witness at trial.
These activities are flatly proscribed because they are inherently intimidating, with no requirement for proof of actual or direct coercion. A judge’s solicitation or endorsement carries extra weight that may be “perceived as an official act” or otherwise might “reasonably be perceived as coercive.” The only exception is for solicitation from other judges, but even that is limited to those “over whom the judge does not exercise supervisory or appellate authority.”
If a judge cannot even appear on the dais of a charitable fundraiser, for fear of coercing contributions from the assembled adult attendees, imagine how much more pressure would be experienced by high school football players who see their coach kneeling in prayer at midfield.
Although the Supreme Court has steadfastly refused to adopt the Code of Judicial Conduct, making it the only court in the U.S. without a written code of ethics, all six justices in the Kennedy majority previously served on lower federal courts to which the Code applied. They were all presumably aware of the Code’s provisions and must surely have observed the prohibition on activities that risked silent, perceived, or implicit coercion.
Nonetheless, the six justices unquestioningly relied on Coach Kennedy’s assurance that he “never coerced, required, or asked any student to pray,” and that he never “told any student that it was important that they participate in any religious activity.” They brushed off as hearsay the school district’s reports from parents that children had “participated in the team prayers only because they did not wish to separate themselves from the team.”
A more ethically aware majority would have reached the opposite conclusion, recognizing, in the Code’s language, that the coach’s mid-field demonstration of faith could reasonably be “perceived as an official act.” Kennedy’s protestation meant at most that he was oblivious to the unspoken pressure he exerted on his students. The dismissal of parents’ complaints places even more pressure on the kids, evidently requiring them either to go along with the prayers or risk coming forward with public criticism of their coach and teammates.
Chief Justice Roberts once said that the Supreme Court takes guidance from the Code of Judicial Conduct, and therefore has no need to formally adopt it. Maybe so, but the justices in the Kennedy majority could still have much to learn from its essential teaching on the dangers of implicit coercion. The absence of a SCOTUS code of conduct has had many unfortunate consequences. This time it may have contributed to undermining the separation of church and state, and there is no telling what will happen next.
Steven Lubet is the Williams Memorial Professor and director of the Fred Bartlit Center for Trial Advocacy at Northwestern University’s Pritzker School of Law. He is the coauthor of “Modern Trial Advocacy” and many other books on legal ethics and law practice.
[Photograph by Fred Schilling; Collection of the Supreme Court of the United States.]
This is an opinion piece. The views expressed in this article are those of just the author.