Managing Legal Change: The Transformation of Establishment Clause Law

Abstract

One perspective on the Supreme Court is to see it as a manager of legal change. At a particular time, and with respect to a particular issue of federal law, a majority of Justices may coalesce around a law-transforming project. Because the Court enjoys nearly complete control over its docket, such a coalition of Justices may select carefully the cases most advantageous to the law -transforming project. And because the Court's pronouncements on matters of federal law are binding on all other interpreters, the Court may enforce its legal transformation by exercising its disciplinary powers of review. The Court's implementation of such law-changing projects is subject to a number of constraints, including the case-or-controversy limitation, the strategies of litigants, resistance by those the change would affect, disagreements among the change-favoring Justices, procedural rules, and informal norms such as stare decisis and the requirement of reasoned explanation. One way of evaluating the Court's work-besides substantive criticism of the rules or principles the Court ultimately adopts-is to examine how successfully the Court has pursued its law-transforming project, and in particular, how successfully it has negotiated the constraints that define the Court's power to manage legal change.

The law-transforming project examined in this Article is the Court's recent revision of Establishment Clause doctrine, particularly in the context of government aid to religious education. For a number of years, a majority of Justices were on record as opposing what had been the governing Establishment Clause standard-the Lemon test-on the grounds that it was insufficiently constraining on judicial interpretation and excessively restrictive on government aid to religion. But the change favoring Justices could not obtain a majority for any Lemon-replacing standard. Finally, in its 1997 Agostini v. Felton decision, the Court moved toward clarifying Establishment Clause doctrine and transforming the principles set out in Lemon.

In this Article, I argue that the Court made a serious error in choosing Agostini as the vehicle for its transformation of Establishment Clause doctrine. The prime difficulty was Agostini's procedural context which, as the Article explains, prevented the Court from acknowledging that its decision was changing the law. As a result, the Court could argue only that pre-Agostini precedent already had changed the law; the Court could not present new arguments, not yet sanctified by precedent, for transforming Establishment Clause doctrine. The Court's reading of pre-Agostini precedent is mistaken, and more important, the Court did not – and because of the procedural context could not – develop the sort of reasoned explanation one would expect from a decision to overrule the Court's precedents and change the law. Further, because Agostini denies lower courts the power to recognize what the Court itself professes to recognize – that the law already has been transformed, and Supreme Court precedents already have been abandoned – the Court finds itself ensnared in the paradox of reversing a lower-court decision it acknowledges was correct. Escaping this paradox would have required the Court to recognize a more active role for lower courts in the process of managing legal change. This Article maintains that, besides extricating the Court from paradox, recognizing a more active role for lower courts would have been independently desirable. Agostini's irony, the Article concludes, is that it combines an insistence on the Court's exclusive prerogative to manage legal change with an alarmingly poor exercise of that very prerogative.