God, civic virtue, and the American way: reconstructing Engel.

• Author: Lain, Corinna Barrett
• Position: Introduction through II. What Happened Next A. 'When We Won the Case, All Hell Broke Loose,' p. 479-514

INTRODUCTION I. HOW HISTORY SHAPED ENGEL A. In the Beginning B. The Rise of Religious Pluralism C. The Fall of Cold War Religiosity D. For The Justices, a Relatively Easy Case II. WHAT HAPPENED NEXT A. "When We Won the Case, All Hell Broke Loose" B. The Role of Media And Misunderstanding C. The Role of Religious (and Other) Elites D. The Supreme Court Responds: School District of Abington Township v. Schempp. III. WHY IT MATTERS A. The Reality of Engel's Heroic, Countermajoritarian Narrative B. The Influence of Culture in Generating Constitutional Change C. A Rare "Strong Form " of the Dialogic Function of Judicial Review D. Not All Popular Constitutionalism Is Created Equal CONCLUSION INTRODUCTION

Constitutional lore casts the Supreme Court as a countermajoritarian protector, champion of unpopular minorities against tyrannical majority rule. (1) Over the last several decades, this romanticized conception of the Court has softened somewhat as empirical work on Supreme Court decisionmaking has mounted. (2) Today, "underground conventional wisdom" (3) within the legal academy is what political scientists have known, and shown, for almost fifty years: the Supreme Court is a fundamentally majoritarian institution. (4)

For those who study Supreme Court decisionmaking and the role of judicial review, the question then becomes how to understand the Court when it deviates from the general rule. If the Supreme Court is mainly majoritarian, what can we learn from when it is not? The answer, as Barry Friedman has recognized, is "remarkably impoverished." (5)

Against this backdrop, Engel v. Vitale (6)--the 1962 decision that struck down school prayer--stands as a conspicuous case for renewed scholarly attention. Engel started with a want ad. (7) A parent was looking for others to join him in challenging a New York school board's decision to begin the school day with a short ecumenical prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." (8) Steven Engel answered the ad, as did the parents of a number of other children of varying religious backgrounds. (9) They lost in the trial court. (10) They appealed, and lost again. (11) And in New York's highest appellate court, they lost yet again. (12) Then the Supreme Court granted certiorari and invalidated the prayer under the First Amendment's Establishment Clause. (13) The nation freaked.

Within the academy, Engel is widely regarded as one of the most unpopular decisions in Supreme Court history, (14) and for seemingly good reason. Engel provoked more outrage than Dred Scott v. Sandford, (15) It infuriated more areas of the country than Brown v. Board of Education. (16) It inspired more congressional attempts to nullify it and impassioned vows to evade it than Roe v. Wade. (17) And it was intensely unpopular with the American public. The Supreme Court received more mail on Engel than it had ever received on a single case--around 5000 letters, "mostly negative," in the first month after the decision (18)--and a Gallup poll taken shortly after the decision registered disapproval of the ruling at seventy-nine percent. (19) The Justices had misbehaved before, but "never in the wildest of their excesses" had they gone as far as they did in Engel. (20) To the people and their representatives, Engel was more than a misreading of the Establishment Clause. It was an affront to God, civic virtue, and the American way.

Indeed, Engel's counter majoritarian narrative is so strong that the tension between minority rights and majority rule was explicit in the framing of the case. It was in the parties' arguments. (21) It was in the public discourse. (22) And it was in Justice Black's delivery of the decision itself. (23)

Little wonder, then, that as scholars today debate the nature of Supreme Court decisionmaking, Engel is--as it has been for fifty years--a go-to case. For some, it is proof of the Supreme Court's staunchly countermajoritarian capacity. (24) For others, it is the rare exception to a reliably majoritarian Supreme Court. (25) Either way, Engel stands as a sterling example of countermajoritarian decisionmaking, a classic case of judicial bravery in the face of public sentiment the opposite way.

Perhaps because Engel's countermajoritarian narrative is so strong, few scholars have paused to consider whether the case in fact tells the story of Supreme Court decisionmaking for which it is famous. Thus far, only one law review article has dedicated its pages to the larger sociopolitical context in which Engel was decided, and even there Engel is but a piece of a larger Establishment Clause history. (26) Still lacking is a robust account of the decisionmaking in Engel: how larger sociopolitical forces influenced the case and its timing, what the Justices thought when they decided it, why the nation reacted as it did, and ultimately, what the case says about the Supreme Court's countermajoritarian capacity. My aim is to provide such an account.

Using primary source materials, this Article reconstructs the story of Engel, providing a dramatically different account of the case than that which appears in the conventional script. The contribution is twofold. First, this Article challenges the prevailing view of Engel as proof of the Supreme Court's countermajoritarian capacity. On the surface, Engel exudes judicial bravery, but closer examination shows that to be a facade. To the extent the Justices in Engel played a countermajoritarian role at all, they did so unwittingly. Indeed, all indications are that if the Justices had known just how unpopular Engel would be, they would not have taken the case in the first place.

Second, this Article brings to light what the surface appeal of Engel's countermajoritarian narrative has eclipsed--a remarkably rich account of Supreme Court decisionmaking that furthers a number of conversations in constitutional law. Engel is a testament to the power of the 1950s ecumenical movement in generating constitutional change, adding a new thread to a burgeoning body of scholarship in the "court and culture" literature. It shows the Justices explicitly engaging in a dialogue with the American public, revealing a rare "strong form" of the dialogic function of judicial review. It illustrates the variety of forms that popular constitutionalism might take, offering an opportunity to think about qualitative differences in the way democratic dissent fosters constitutional discourse. And along the way it illuminates issues that are not at the forefront of conversations in constitutional law, but perhaps should be: how the media filters our perception of judicial review, what the support of highly educated cultural elites might say about an issue, and the ways in which messaging can matter. Engel offers a wealth of insights into Supreme Court decisionmaking and the role of judicial review, but only once we have a robust understanding of what happened in the case.

Before proceeding, a point of clarification merits mention. This Article is not concerned with whether Engel was correctly decided; it is concerned with why the Justices decided it. Nor is this Article concerned with doctrinal developments since Engel, at least after 1963. (27) I take Engel for the case it was, and its broader implications for what contemporary observers understood them to be. All that is to reiterate that this Article is about understanding the Justices' decisionmaking in Engel, and explaining why, if the understanding I offer is right, it was obscured by what happened in the aftermath of the case. Only by understanding the decisionmaking in Engel can we begin to understand what its contributions to constitutional theory are, and aren't.

The discussion proceeds as follows. Part I shows how history shaped Engel, tracing the major historical developments in the school prayer controversy, situating the case against its larger sociopolitical backdrop, and examining the Justices' decisionmaking in the case. Part II turns to the aftermath of Engel, detailing the events that occurred in Engel's wake, explaining why the nation reacted as it did, and presenting the Supreme Court's 1963 Bible reading decision in School District of Abington Township v. Schempp (28) as an important part of Engel's narrative. Part III discusses the implications of this reconstructed account, rejecting the heroic, countermajoritarian narrative for which Engel is famous and exploring the vastly underappreciated contributions it makes to a number of other conversations in constitutional law. In the end, Engel is as important and instructive as it always was--just not for the reasons conventional wisdom would have us think.

1. HOW HISTORY SHAPED ENGEL

   To understand Engel, one must first understand what happened before it. This Part aims to provide that understanding, showing how history shaped Engel in various ways. (29) First, I explain how the controversy over school prayer began. Then I show how the rise of religious pluralism made school prayer an intractable problem by the mid-twentieth century, and how Cold War religiosity kept the ruling at bay until 1962. I conclude with an inside look at the Justices' decisionmaking in Engel, which seemed to them a relatively easy, uncontroversial case.

   1. In the Beginning

      In the beginning, school prayer was not controversial. The colonists may have come to the New World to escape an established religion, but that did...