Marsh, Schemmp, and assurances made

[Eugene Volokh]

    By the way, for whatever it's worth, in Schempp (one of
the school prayer cases) Justice Brennan himself suggested that
legislative prayer "might well represent no involvements of the kind
prohibited by the Establishment Clause."  374 U.S. 203, 299-300
(1963).

    To his credit, he admitted this in Marsh, and concluded "after
much reflection" that he was wrong in Schempp.  But I suppose that
this might show that Marsh is not quite so odd as it might seem.

    It also raises a somewhat different question.  The school prayer
cases were, to my knowledge, immensely unpopular with many people, and
foreseeably so.  In the course of this, the Justices put in a good
deal of language -- perhaps including the hedge I quote above -- that
stressed just how narrow the decisions were supposed to be.  The
language might have been needed to keep some of the votes on the
Court; or perhaps it might just have been needed to keep the public
hostility from being even greater than it was.

    Should we be at all troubled if the Court later concluded "after
much reflection" that these hedges were wrong?  I realize that this
can't be any sort of legal bar (as it would be if it were indeed a
formal negotiated settlement) -- the Court must have the flexibiltiy
to indeed change its mind.  Still, is there some sense in which the
Court should be hesitant to repudiate the rhetoric that made its
earlier cases more palatable, and perhaps ultimately averted their
constitutional reversal?  Who knows, perhaps if in 1962-63 the
school prayer cases actually did go as far as Sandy quite plausibly
argues the Estab Cl should go, the proposed amendment to reverse them
would have passed just fine.

    Or if not, shouldn't this remind us to be extremely skeptical,
perhaps even cynical, about the Court's assurances that "this is just
a small step, don't worry about it"?

                               -- Eugene Volokh, UCLA Law