Why I Became a Legal Realist (Redux): A True Story of Constitutional Madness

These days with the Supreme Court acting like the Republican Court, I often think about the chain of evnts that led me to become a hard core legal realist. I wrote about this part of my career once before but thought I'd revisit the question as I approach my late 60's and my career is winding down a bit.

I was not a legal realist before I reported to work at the United States Department of Justice in the fall of 1987. I did have dinner with my closest friends the evening before who had previously been surprised I decided to work for the Bush Administration, given my liberal politics.

I knew several people working in the Federal Programs Branch where I was heading, and they told me they rarely worked on political cases. I told my friends that I would not work on abortion or separation of church and state cases (as a matter of policy I am a strict separationist), but I could manage the rest. 

I was assigned two cases my first day on the job. One of them, of course, was a major First Amendment challenge by Americans United for Separation of Church and State against two different federal programs that provided educational assistance to public schools, private schools, and religious schools. The plaintiffs claimed the programs violated the Establishment Clause by using tax dollars to support religious education.

The assignment gave me heartburn. I reluctantly went to my supervisor and said I knew that this was a terrible way to start my career at the DOJ but I had a real problem with the case. I told him the story of my dinner the night before and what I had said to my friends.

He said he understood and suggested that I go to San Francisco where the case was located and visit the schools and see the situation on the ground. If I did not want to work on the case after that, I did not have to. I thought that was a reasonable approach, so I apologized repeatedly for being a nuisance on my first day and then booked my flight.

To make a too long story just a bit shorter, I flew to San Francisco and discovered that most of the schools receiving the aid were poor, in rough urban neighborhoods, and the people working for these schools seemed to be doing an important service for mostly marginalized children of color in the Bay Area. Although I would not vote for such a program, I could not say that it was so immoral that I should take a big stand on this issue.

Or maybe, I was just co-opted?

In any event, to understand what happened next, we must revisit the state of the law in 1989 pertaining to parochial school aid. In a series of incoherent and absurd cases, the Supreme Court held that the only governmental assistance that could be provided to religious schools were secular textbooks and some diagnostic testing services. Almost everything else was constitutionally off the table pursuant to two Supreme Court cases, Meek v. Pittenger and Wolman v Walters.

These two cases held that the only educational equipment and materials that states could provide to children in religious schools were secular textbooks. This insane rule prompted a commentator to observe that, if a state wanted to provide secular books to religious schools, that was constitutional. And if those books happened to be atlases, they too could be provided to religious schools. But if a state wanted to provide the same maps that were in the atlases in map form, not book form, that largesse would be unconstitutional under the Establishment Clause--an obviously bizarre result.

The problem was that, although there were many complicated and open issues in my case, one of them had been definitively resolved by Supreme Court precedent. Part of the federal law I was defending gave educational equipment and materials like chalk, erasers, and pencils to religious schools. That part of the law was simply unconstitutional under Meek and Wolman.

Although the program providing this aid was a federal one, the money filtered down through the California state system, the San Francisco Unified School District, and then to the private schools. The co-defendants included the Archdiocese of San Francisco, while the United States Catholic conference successfully intervened in the case. Their lawyer, Charlie Wilson, was a former law clerk for Chief Justice Warren with extensive litigation experience in church/state matters and a partner at the prominent law firm Williams & Connelly.

The other defendants in the case were represented by senior partners (all white men) in their 50’s and 60’s working for major law firms. At the time, I was 32 years old and had never argued in court in my life.

I went to my supervisor about a month before our brief was due and said I could not think of a way to defend the part of the case giving equipment and materials to religious schools, given that the law was clear: only textbooks and diagnostic testing were allowed to be given to religious schools by the government, and here the government was giving other aid. He agreed. We were stumped until Charlie said he found a non-frivolous argument to support the program.

And that was where my legal realism was born.

Charlie argued that the programs in Meek and Wolman were different because they applied exclusively to private schools. The federal programs we were defending applied mostly to public schools; only a small percentage of the aid went to private schools. Charlie argued that difference was constitutionally significant under the relevant legal standards.

The problem was that neither Meek nor Wolman had drawn such a distinction. Additionally, I responded that the reason the statutes in those two cases applied only to private schools (most of which were religious) was because other parts of the statutes in those states allocated money to public schools. The two funding laws could just as easily have been in one statute, and then the cases would be identical.

When the entire group met to discuss this plan, I conceded that this argument might get us past Rule 11 of the Federal Rules of Civil Procedure, which prohibits frivolous arguments. But I said only by the slightest amount. And, we were never going to win on this issue in the lower courts. 

When I was done, all the other lawyers were on the same page. They responded that I was probably right but one never knows what arguments judges might accept. If we made the judge sympathetic to the children, maybe he would accept the distinction. In any event, the real goal of the lawsuit was to preserve the argument for the Supreme Court, or more specifically given the precise issues, for Justice O’Connor, the swing vote at the time.

After everyone agreed this would be our litigation strategy for that part of the case, we began talking about the details of the oral argument. The judge had said that the co-defendants had to be represented by only one person and that person had to be the lawyer for the United States Department of Justice because it was a federal program. I mentioned to my supervisor and the group that I had never argued in court before, much less in a case receiving attention all over the Bay Area and even nationally. Perhaps a more experienced attorney should handle the argument. I was told it had to be me.

Each side was given thirty minutes.

I researched the judge and found that he was quite elderly, definitely crotchety, and extremely hard of hearing, requiring lawyers to yell when they made their arguments to him. This was the moment the real problems with life tenure smacked me in the face but that is a story for a different day (kind of, see below).

The morning of the argument I arrived early to make sure I heard the first four cases. The senior attorneys surrounding me emphasized the judge could be extremely short tempered. That became apparent as I watched him yell and antagonize the lawyers during the first four arguments, none of which raised political stakes. Also, all the lawyers were screaming to be heard.

After the first four cases were completed, and then a short break, I stood up to begin my argument with a semi-circle of senior lawyers sitting behind me. This was my first formal appearance in the case so I said the following in the loudest and slowest voice I could muster. I was literally yelling: 

"Good morning your Honor. My name is Eric Segall, and I represent the United States Department of Education in this matter. I am taking over this case from Ted Hirt, the previous attorney assigned to this litigation."

The mostly bald, quite ancient judge sitting imperiously behind the tall, majestic bench reminded me of the Wizard of Oz. Then he said this:

“Yes Mr. Smiggy Bibby I know, please proceed.”

I could feel the smiles and hear the quiet laughter of the lawyers behind me. I knew I could not handle a thirty-minute argument being called, “Mr. Smiggy Biggy.”

I raised my voice, spoke as loudly as I could considering minimal courtroom decorum, and said, “Yes, Your Honor, as I was saying, my name is Eric Segall and….”

He angrily interrupted me and said, “yes, yes, Mr. Smiggy Biggy, go on.”

And he called me that name at least ten more times.

It was horrible.

And then the people at DOJ called me “Mr. Smiggy Biggy” for the next three  years.

But that is not why I am a legal realist.

To explain that, we must quickly review the governing law on the issue as it existed during the time of this case. The Supreme Court had held plainly that the only instructional materials that the government could provide to religious schools were secular textbooks. Any other kind of equipment or materials was off-limits. Yet, that is exactly what the federal program provided.

When I made my argument to the judge (loudly) that the statutes in the two binding cases applied only to private schools, whereas the federal program applied to public and private schools, opposing counsel pointed out exactly what I said to the group when Charlie first raised the theory: private school funding laws were stand-alone because public school funding came from different parts of the state codes. But that separation had no constitutional significance, especially as both states in those cases spent much more money on public than private schools. Although our initial argument might not be frivolous, we had no realistic response to that line of reasoning.

My short rebuttal focused on other parts of the case that were not already lost.

But we won the whole case!

Eventually, the Ninth Circuit affirmed the opinion, which was crazy, especially after the conservative Fifth Circuit, dealing with the identical issue, went the other way on the explicitly stated grounds that they were bound to rule that way not because they wanted to. That case, Mitchell v. Helms, went to the Supreme Court and the justices changed the law, as most people expected. More on that below.

When the district court judge issued his opinion, I was a hero for having won a case the government clearly should have lost. But both the district court and 9th Circuit opinions were terrible. The dissenting judge in the 9th Circuit said the following, which was correct:

I must dissent as to Part II because what the Supreme Court gives, the Supreme Court must take away. That Court has given us the books-for-kids versus materials-for-schools dichotomy. Only it can take it away. Thus, I think that the Chapter 2 program must cease insofar as it provides for direct loans of materials to parochial schools.

This reasoning was echoed by the Fifth Circuit. I think the district court judge in our case did feel empathy for the children or the schools, believed the binding law made no sense, and decided to rule for the government in a way obviously inconsistent with previous Supreme Court cases. I have no idea what two of the three judges on the Ninth Circuit panel were thinking.

The irony is that 35 years later, my legal realism is mostly reserved for the Supreme Court, but it was born during this lower court litigation. We never should have won, much less in front of the court of appeals. The opposing argument was a slam dunk.

But there is more to this story and the hard lessons of legal realism. The entire time I litigated the case, and for decades before that, after dozens of similar cases, the Court viewed the issue as what forms of assistance the state and federal governments could provide to religious schools. My first law review article, written in 1989, argued that the correct answer to that question should be exactly where the Rehnquist Court eventually landed in the Helms case eleven years later. The government should be allowed, if it chooses, to provide religious schools with the same secular equipment, materials, and computers, if any, that it gives to secular private schools.

Despite decades of government attorneys and other lawyers arguing to the Court that states were allowed to provide religious school aid notwithstanding the Establishment Clause, no one seriously argued that if a state gave aid to private non-religious schools, the state was constitutionally required to give the same aid to religious schools pursuant to the Free Exercise Clause. It was assumed by almost everyone that, if they wanted to do so, states were permitted to give aid to secular private schools but not to religious schools out of concerns for too much entanglement with religion. And, even if the Establishment Clause allows aid to religious schools as a permissive matter, everyone thought states could take anti-establishment values into account when deciding whether to fund religious schools.

However, in three recent cases decided by the Roberts Court, discussed here, the conservative justices decided that states must provide the same aid to religious schools they give to secular private schools. These cases do not allow the states to take anti-establishment concerns into account when deciding whether to fund religious schools. None of the opinions relied on text, history, tradition, or even precedent. They were just common law, living constitutionalism decisions based on the justices’ value judgments about the proper relationships between and among the religion clauses, the government, and religious schools.

For most of my career, the fight was over what the government could give to religious schools given the limits of the Establishment Clause. The justices answered that question with incoherent and illogical distinctions, which provided fuel for my legal realism. But at no time did the Court suggest that the Free Exercise Clause might require the state to provide aid to religious schools if they aided secular private schools.

And here is the most important moral of this true tale. The law changed 180 degrees on this issue despite no changes to text and no one discovering new sources of original meaning. In fact, the justices at no time asked whether their equality requirement is consistent with the First Amendment’s original meaning. They did not ask because they knew the answer, and it is not the one they wanted.

What I described in this surely too long post applies to most major questions of constitutional law. Whether the issue be color-blindness, the major questions doctrine, abortion, guns, separation of powers, or federalism, constitutional law is the product of the aggregate of the value preferences of the justices, not legal sources such as text, history, and tradition. The most important guiding light for this Court seems to be the values of the Republican Party, not law, as I wrote here.

And there is absolutely nothing preventing the justices from going further and holding that the state’s funding of secular public schools also requires them to fund religious schools on a per capita basis. Yes, that holding would be inconsistent with text, history, and precedent. But it is still possible because those legal sources do not constrain the justices.

At all.

And that is why I am a legal realist, and you should be too.