Hugh Hewitt's Adopt-a-Box

Radio talk show host Hugh Hewitt had an interesting idea on Friday. The Reagan Library had just released more than 90 boxes of documents from John Roberts' time in the Reagan administration, and Hugh suggested that perhaps some bloggers should get a look at those documents and report on anything interesting that may be the subject of debate during the confirmation process. I volunteered to be one of those bloggers.

Hugh's producer Duane Patterson had the unenviable task of assigning the boxes, and I was assigned one of three boxes dealing with the issue of school prayer. I decided to approach the task as a lefty might, and was prepared to look for anything that might offend my lefty sensibilities. Alas, it was not to be.

My box, all 51 pages of it, consisted of two printed dissenting Supreme Court opinions, written by Justice Rehnquist and Chief Justice Burger, and one concurring opinion from Justice O'Connor, in the case of George C. Wallace, Governor of Alabama vs. Ismael Jaffree et al. Unfortunately, none of the pages outline the particulars in the case, but it appears from what I read that the state was sued over the practice of having a moment of silence to start the school day.

Justice Rehnquist's dissent is interesting in one way in that it gives a very detailed history of the development of the Bill of Rights, and what Rehnquist clearly believes is a misinterpretation of the establishment clause which in his mind has been wrongly used to ban religious activities in the public square. If your student ever has to do a paper on how the Bill of Rights came to be, be sure to print off this opinion.

Throughout the entire 51 pages, there are only two handwritten notations, presumably by John Roberts. The first occurs on page 16 of the Rehnquist dissent where someone has marked the following sentence:

It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-excepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations.

The second handwritten notation is a check mark which appears next to this paragraph on page 13 of the O'Connor concurring opinion:

The United States, in an amicus brief, suggests a less sweeping modification of Establishment Clause principles. In the Federal Government's view, a state-sponsored moment of silence is merely an "accommodation" of the desire of some public school children to practice their religion by praying silently. Such accommodation is contemplated by the First Amendment's guaranty that the Government will not prohibit the free exercise of religion. Because the moment of silence implicates free exercise values, the United States suggests that the Lemon-mandated inquiry into purpose and effect should be modified.

I'm not a lawyer, and I don't even play one on TV, so what all this means is a mystery to me. Neither passage would seem to indicate Mr. Roberts' opinion on school prayer one way or the other. If I were a lefty, I would have long since given up trying to make anything out of this.

One thing for sure, after reading these long-winded opinions, I think I'll pass on the job if I'm ever nominated to the Supreme Court.