WASHINGTON -- School prayer was the focus of debate when the Supreme Court justices gathered for a closed-door conference on Nov. 8, 1991. Specifically, did the Constitution permit a clergyman to lead a prayer at a public high school graduation ceremony?
Justice John Paul Stevens, speaking with visible emotion, said they should strike a blow for "tolerance" and prohibit the prayer. Otherwise, the United States might go the way of Northern Ireland and Yugoslavia. "Religion is a private matter," he said.
But Justice Antonin Scalia objected. "This is not remotely establishment [of religion]," he said. "The country went bananas when it took prayer out of the schools."
Justice Anthony M. Kennedy said he was with Scalia -- and his vote made a 5-to-4 majority in favor of allowing the prayer. Chief Justice William H. Rehnquist assigned Kennedy the task of writing the court's opinion. But by March 30, 1992, there was surprising news: Kennedy had switched sides.
The inside story of the 1992 prayer case, Lee v. Weisman, exemplifies what is perhaps the overarching theme of the Justice Harry A. Blackmun papers, which the Library of Congress released to the public last week, and from which this account of Kennedy's vote switch is drawn: namely, the frustration of years of efforts by Republican presidents to move the Supreme Court decisively to the right on the social issues that most animate the party's conservative base.
The repercussions of Kennedy's about-face in Lee v. Weisman are still being felt.
The court's opinion, written by Kennedy, set the precedent that a California federal appeals court cited last year in striking down teacher-led flag salutes in public schools because of the phrase "under God" in the Pledge of Allegiance.
Today, instead of advancing toward expanded school prayer, conservatives are wondering whether even the pledge, once thought to be on solid legal ground, can survive oral arguments at the Supreme Court on March 24.
Another 1992 vote switch by Kennedy, in Planned Parenthood v. Casey, salvaged the right to abortion enshrined in 1973 by Roe v. Wade -- and set a precedent for expanded sexual freedom that Kennedy himself would cite last year in Lawrence v. Texas, a landmark case that swept aside state laws criminalizing homosexual conduct and energized the movement for gay marriage.
Indeed, as the papers demonstrate, the blunting of the conservative counterrevolution is largely the result of the actions of justices appointed by Republican presidents Ronald Reagan and George H. W. Bush: Sandra Day O'Connor, David H. Souter, and, especially, Kennedy, who was appointed by Reagan only after Senate Democrats thwarted the nomination of Robert Bork, a fact that more than one conservative noted ruefully as the papers became public last week.
"If there is any big picture to be drawn from the Blackmun papers," said John C. Yoo, a former Justice Department official in the George W. Bush administration, "it is that the president cannot control the people he puts on the Supreme Court. You can't control them even when you're trying to pick them for a specific issue. The Kennedy story is the amazing story."
Yoo added: "The papers really show that the Bork appointment was pivotal . . . and that the liberal groups that went after Bork so as to get someone less aggressively conservative, like Kennedy -- that strategy worked."
Blackmun, who died in 1999, must have been amazed when he received a note from Kennedy on March 30, 1992. "After writing to reverse the high school graduation case, my draft looked quite wrong," it read. "So I have written it to rule in favor of the objecting student." Now, Kennedy and Blackmun were on the same side.