In The Arena: Two Decades At The U.S. Supreme Court
In June 1995, I was in the Supreme Court’s courtroom every time the justices were. Our new ministry, then called Alliance Defense Fund, awaited rulings on two cases being reviewed by the highest court in the country. In those still-early days of the Internet, the only way to learn immediately what rulings the high court was handing down on a given day was to actually be sitting in the courtroom.
The first ruling came in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. Attorney Chester Darling was representing a group of veterans being sued for discrimination for not allowing a group with pro-homosexual messages to march in their annual St. Patrick’s Day parade. Chester had cashed in his last retirement fund to pay for the cert petition filed at the Supreme Court. When the court granted review, I called Alan Sears and suggested we offer to help Chester with the case. He agreed, and the ministry covered the ensuing legal costs. We also set up a moot court—a kind of courtroom dress rehearsal—to help Chester prepare.
Former Attorney General Ed Meese ran the moot court, enlisting former Supreme Court clerks and attorneys from his Justice Department days to help Chester sharpen his presentation. He did well at the oral arguments, and now, two months later, came the ruling. I sprinted across the street to a Senate office building to call Chester on a pay phone (cell phones were not ubiquitous yet) to tell him we won, 9-0. The court said the First Amendment protected the veterans from government efforts to force them to communicate a message they could not, in good conscience, support.
"By committing to help others, we’d opened the door to what would prove to be a series of successes at the Court.”
Ten days later, our second ruling came down, this time in Rosenberger v. University of Virginia. Our ministry had provided funding to help Professor Michael McConnell represent students who challenged a university rule that excluded religious groups on campus from receiving funds to print Christian newspapers. Now, I sat listening as the high court said that the university violated the Constitution by denying funding to a paper simply because it expressed a religious view.
Many groups work for years to be involved in a high court case. Just 18 months after opening its doors, Alliance Defending Freedom had already contributed to two significant wins. By committing to help others, we’d opened the door to what would prove to be a series of successes at the Court.
In November 1999, I had the privilege, as a member of the Alliance Defending Freedom team, of arguing at the Supreme Court on behalf of Scott Southworth. Scott, a law student at the University of Wisconsin, was challenging the mandatory fee his school used to fund campus groups advocating ideas—like support for abortion—that he and other students opposed.
An attorney representing the university reacted skeptically when, early on, I predicted the case would go to the Supreme Court. Now, three years later, as we stood waiting to present oral arguments to that Court, I reminded him of that conversation. In truth, I was thankful just to be standing there—72 hours earlier, I’d been stricken with a kidney stone. But, by God’s mercy, I recovered and argued that day. The following March, the high court issued a ruling that ultimately forced public universities to change the ways they raise and allocate student fees to fund advocacy groups on campus.
All in all, now, our ministry has been part of 69 cases at the Supreme Court—many of them great victories, some of them painful defeats. I remember the thrill in 2011, when our attorneys defeated the American Civil Liberties Union in a critical win that has significantly limited the ACLU’s ability to sue over school choice programs around the nation. And I recall the sad disappointment as I sat in the courtroom listening to the 2010 decision in Christian Legal Society v. Martinez (undercutting the rights of religious groups at universities), and last summer in two marriage cases we were involved with: Hollingsworth v. Perry and United States v. Windsor.
President Theodore Roosevelt famously praised “the man in the arena,” who, even when he loses, knows he has expended himself valiantly for a noble cause. We are so blessed to have won much more often than we’ve lost, and those victories have been sweet, protecting the liberties of all Americans from governmental intrusion. They inspire us to persevere in our continuing fight for religious liberty, life, and marriage.
With our current cases—Conestoga Wood Specialties v. Sebelius this spring, possibly Elane Photography v. Willock, next term—I won’t have to run for a pay phone to spread news of a Supreme Court victory. And I pray that, one day, one of our own allied attorneys or Blackstone Fellows will be among the justices deciding these great issues at the nation’s highest court.