One Vote Away

How a Single Supreme Court Seat Can Change History

Ted Cruz

• Publisher: Regnery
• Year: 2020
• ISBN:
  9781684511358
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

** WALL STREET JOURNAL BESTSELLER ** USA TODAY BESTSELLER ** PUBLISHER'S WEEKLY BESTSELLER ** NEW YORK TIMES BESTSELLER ** With a simple majority on the Supreme Court, the left would have the power to curtail or even abolish the freedoms that have made America a beacon to the world. We are one vote away from losing our most precious constitutional rights.As a Supreme Court clerk, solicitor general of Texas, and private litigator, Ted Cruz played a key role in some of the most important legal cases of the past two decades.In One Vote Away, you will discover how often the high court decisions that affect your life have been decided by the narrowest of margins. One vote preserves your right to speak freely, to bear arms, and to exercise your faith. One vote will determine whether your children enjoy their full inheritance as American citizens.God may endow us with "certain unalienable rights, " but whether we enjoy them depends on nine judges—the "high priests" who have the last say in our system of government. Drawing back the curtain of their temple, Senator Cruz reveals the struggles, arguments, and strife that have shaped the fate of those rights. No one who reads One Vote Away can ever again take a single seat on the Supreme Court for granted.

CHAPTER 1 RELIGIOUS LIBERTY AND VAN ORDEN V. PERRY

Cecil B. DeMille. Catholic nuns. Schoolchildren. World War I veterans. All are directly implicated in the ongoing battles before the Supreme Court concerning religious liberty. This is the inside story of the battles before the Court to protect our First Liberty.

No right is more precious than the right to religious liberty. There is a reason that the Framers of the U.S. Constitution protected religious liberty in the very first clause of the very First Amendment of the Bill of Rights. The right to seek out and worship God, with all your heart, mind, and soul, according to the dictates of your own faith and your own conscience—to believe or not to believe—is fundamental to who we are.

There is no moral and just government that does not respect the religious liberty protections of its people. True political liberty, free speech, social stability, and human flourishing all depend upon a robust and durable protection, under the rule of law, of our fundamental right to choose our faith. And, on the flip side, efforts to undermine religious liberty and to persecute religious minorities are a telltale sign of tyrannical government.

Many who founded this nation were themselves fleeing religious persecution, and they came to form a country where the government could not take away that fundamental liberty. When the Pilgrims left Plymouth, England, aboard the Mayflower in 1620 and subsequently landed in Massachusetts, they were fleeing religious persecution. The Pilgrims were Puritans and were deeply pious men and women (as the Mayflower Compact shows in no uncertain terms).

More than a century later, the Declaration of Independence, the document that gave birth to our nation, declared, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Thirteen years later, the language used by the Framers of the First Amendment reflected this robust commitment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…” The constitutional text does not say religious faith shall be tolerated or accommodated where convenient; it says “Congress shall make no law.”

The two religion clauses that follow are referred to as the Establishment Clause and the Free Exercise Clause. And the intersection of the two has been a source of confusion and the vehicle for many of the more extreme lawsuits and decisions by judicial activists undermining religious liberty.

The Establishment Clause prohibits government from using government power to coerce people to believe one particular religious faith or denomination. Having declared independence from England and fought a bloody war to achieve it, the Framers did not want the United States to have an official Church like the Church of England. Rather, they sought to protect our individual right to choose our own faith.

The left reads its own hostility to faith into the Establishment Clause, arguing that the clause implies the notion of an absolute “wall of separation of church and state.” But the phrase “separation of church and state” is found nowhere in the Constitution. It’s not in the Bill of Rights, and it’s not in the Declaration. Instead, that phrase comes from personal correspondence that Thomas Jefferson wrote the Danbury Baptist Association in 1802.

In that letter, Jefferson was not arguing for a wall to protect government from any acknowledgment of faith, but rather a wall against government interference with churches to protect the church from government. In other words, Jefferson thought that the American people needed a one-way wall stopping government from controlling churches to protect their most basic right.

How do we know this? Well, the purpose of the religion clauses was to protect our “rights of conscience,” as Jefferson put it. They were to protect faith, not to require government to be affirmatively hostile to the acknowledgement of faith.

As the Supreme Court long understood, government cannot “show a callous indifference to religious groups” because “[t]hat would be preferring those who believe in no religion over those who do believe.” Zorach v. Clauson (1952).

But, starting in the 1960s, the Supreme Court began reading the Establishment Clause as doing something much more: requiring the removal of God from the public square.

In 1962, in Engel v. Vitale, the Court banned the public recitation of prayer in public schools, and the next year, in Abington School District v. Schempp, the Court banned reading the Bible in public schools.

The consequences of those decisions were far-reaching, and at the time even some of the more liberal justices expressed caution. In Abington, Justice Arthur Goldberg warned that “brooding and pervasive devotion to the secular” and “hostility to the religious” would violate the constitutional rights of believing Americans. Regrettably, the anti-religious sentiment Goldberg noted all the way back in 1963 would become a strong, persistent trend in Supreme Court cases.

And it is contrary to two centuries of our nation’s history and practice. Indeed, there are countless illustrations of the government’s acknowledgment of our religious heritage, including the statutorily prescribed national motto “In God We Trust,” and even the cry before every single proceeding of the Supreme Court: “God save the United States and this Honorable Court.”

All throughout American history, our political and civil leaders have publicly pointed to their faith in God Almighty. They have appealed to God, they have looked to God, and they have implored their fellow Americans to appeal to and look to God alongside them. When President George Washington issued his famous Thanksgiving Proclamation in 1789, he told his fellow citizens that it is “the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor.”

John Adams, who succeeded Washington as America’s second president, captured in a succinct manner our Founding Fathers’ view of the role religion was meant to play in America. “Our Constitution was made only for a moral and religious people,” Adams wisely observed in a 1798 letter. “It is wholly inadequate to the government of any other.”

The Great Emancipator, Abraham Lincoln, was a religious and biblically literate Christian. Our sixteenth president, famously dedicating and consecrating that bloody Pennsylvania battlefield, put it this way: “We here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”

Two years later, he repeatedly invoked and relied upon appeals to our Creator during what was perhaps our nation’s darkest and bloodiest hour, encapsulated by the captivating denouement of his magisterial Second Inaugural Address:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

The next century, as the United States led the World War II effort to defeat the existential evil that was Nazi Germany, President Franklin D. Roosevelt contrasted America and our genocidal foe in a starkly religious juxtaposition:

Our enemies are guided by brutal cynicism, by unholy contempt for the human race. We are inspired by a faith that goes back through all the years to the first chapter of the book of Genesis: “God created man in his own image.”… We are fighting, as our fathers have fought, to uphold the doctrine that all men are equal in the sight of God.

In the 1960s, the Civil Rights Movement in America arose from the churches. Its greatest leader, Dr. Martin Luther King Jr., of course, was also Reverend King. He was a Baptist preacher who held an undergraduate degree in Bible studies and a Ph.D. in theology. His speeches and writing constantly appealed to America’s Judeo-Christian religious and moral tradition.

For the past two years, I have twice had the privilege of joining several other bipartisan senators in reading aloud the entire text of Dr. King’s magnificent “Letter from a Birmingham Jail” on the Senate floor. That missive was addressed to “My Dear Fellow Clergymen,” and was a powerful call to action to the church to defend civil rights. He called the church to be not simply “a thermometer that recorded the ideas and principles of popular opinion,” but rather “a thermostat that transformed the mores of society.”

And Dr. King’s historic “I Have a Dream” speech, given on the steps of the Lincoln Memorial, is as powerful a Christian sermon as ever delivered, worth quoting at length:

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.…

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.…

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God’s children will be able to sing with a new meaning, “My country, ‘tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!”

Read those words again, dwell upon them and hear Dr. King’s powerful cadence echoing through history, and then try to imagine arguing that it is the Supreme Court’s job to ensure that we keep God out of the public square. In doing so, we deny our country’s profound history and legacy of protecting religious liberty, diversity, and faith.

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Our story begins with a landmark religious liberty case that I had the privilege of litigating before the Supreme Court: Van Orden v. Perry. And, curiously enough, it begins at the movies.

Cecil B. DeMille was one of the founding fathers of American cinema. In inflation-adjusted terms, he is the most commercially successful producer-director in Hollywood history. In 1956, his epic Charlton Heston film “The Ten Commandments,” which was nominated for an Academy Award for Best Picture, opened across the country. It was DeMille’s final film, and perhaps his best known.

In an odd twist of fate, the fallout of this film, released fourteen years before I was born, led to one of my most meaningful Supreme Court cases.

Nearly a decade earlier, in 1947, Minnesota state juvenile judge E. J. Ruegemer was presiding over the case of a troubled young man who had stolen a car and struck and injured a priest walking alongside the road. The prosecutors argued for sending him to the boys’ reformatory in nearby Red Wing, but the judge decided instead to sentence the boy to studying and learning the Ten Commandments. That, in turn, sparked an idea for the judge, who was dismayed by what he saw as the deterioration of morals and character among young people at the time. (It’s amazing how some things never seem to change.)

Judge Ruegemer teamed up with the Fraternal Order of Eagles, a national service organization of which he was a member. Over the decades, the Eagles have had seven members who went on to serve as president: Teddy Roosevelt, Warren G. Harding, Franklin D. Roosevelt, Harry S Truman, John F. Kennedy, Jimmy Carter, and Ronald Reagan. Judge Ruegemer suggested the Eagles work to post the Ten Commandments in public spaces across the nation, so that young people might read and reflect upon them. As the judge put it, “it does society good to have reminders of right and wrong in public places.”

In 1951, the Eagles began distributing framed copies of the Ten Commandments to courthouses and schools in Minnesota. By 1953, the program had expanded nationally.

Then, Cecil B. DeMille got wind of it. A consummate marketer, DeMille called Judge Ruegemer and suggested that the Eagles produce more permanent monuments, bronze plaques of the Ten Commandments. Ruegemer raised the ante, suggesting that they instead use Minnesota granite to produce giant tablets, modeled after the stone tablets Moses (and later Charlton Heston) carried down from Mount Sinai.

DeMille was thrilled. If the Eagles would raise the money and distribute the monuments, DeMille and Paramount Pictures would provide Hollywood glamour, sending Heston or Yul Brynner (Rameses) or Martha Scott (Moses’s mother) to speak when the monuments were erected.

Initially, the exact text of the monument posed some challenge. The precise wording of each commandment depends on the one’s faith. So the Eagles brought together a committee composed of a Protestant minister, a Catholic priest, and a Jewish rabbi to collaborate and agree on the language to be used.

The Eagles presented their first Ten Commandments monument to the City of Chicago at its 1954 Grand Aerie Convention. Over the course of the next five decades, they erected hundreds of Ten Commandments monuments all over the nation, in parks and libraries, at courthouses and state capitols and city halls. Virtually all of the monuments were identical, standing six foot, three inches tall, and three foot, six inches wide; their last monument was erected at Vergennes, Vermont, in 2010.

In Texas, our Eagles Ten Commandments monument was erected in 1961. The Eagles dedicated it “to the Youth and People of Texas.” It stands just outside the State Capitol, as one of the seventeen monuments and twenty-one historical markers on the twenty-two-acre grounds that commemorate the “people, ideals, and events that compose Texan identity.”

For over four decades, the monument stood and caused no discernible fuss or consternation. For over forty years, Texas legislators, state employees, and civilian passersby alike enjoyed the monument while meandering across the idyllic Capitol grounds.

Enter Thomas Van Orden, a bright man who went to college and graduated from SMU Law School. After falling on hard times and becoming homeless, Van Orden spent considerable time walking the Capitol grounds in Austin. One day, he spied the Texas monument, and a lawsuit was born.

Van Orden, you see, is an atheist. He believes there is no God, and it offended him to see the Ten Commandments acknowledged on public grounds.

Van Orden was hardly unique in his alleged grievance. Across the country, for decades, there has been concerted litigation against the public display of the Ten Commandments. Over and over again, individual litigants, often coordinated or funded by the ACLU, have brought cases seeking to remove the physical display of the Ten Commandments from public view.

And, unfortunately, in 2001 at the time of Van Orden’s lawsuit, most of these Ten Commandments–monument challenges had been successful. Typically, when state or local governments defended these monuments, they lost. This was the manifestation of years of liberal judges’ being appointed to the bench and adopting a jurisprudence deeply hostile to public acknowledgements of America’s Judeo-Christian religious tradition.

In Texas, thankfully, our litigation record was different. The Texas attorney general’s office was charged with defending the lawsuit and, in the federal district court, we won: the court rejected Van Orden’s claims.

On appeal, before the New Orleans–based Fifth Circuit Court of Appeals, I argued the case before the three-judge panel. And, during the course of argument, I committed one of the cardinal sins that, when I was teaching Supreme Court litigation at the University of Texas Law School, I would regularly urge my students never to commit.

I attempted humor in the course of the argument. As I described the history of drafting the text of the mo...

Table of contents

• Cover
• Title Page
• Dedication
• Introduction
• Chapter 1: Religious Liberty and Van Orden v. Perry
• Chapter 2: School Choice and Zelman v. Simmons-Harris
• Chapter 3: Gun Rights and District of Columbia v. Heller
• Chapter 4: Sovereignty and Medellín v. Texas
• Chapter 5: Abortion and Gonzales v. Carhart
• Chapter 6: Free Speech and Citizens United v. Federal Election Commission
• Chapter 7: Crime, Law and Order, Capital Punishment, and Kennedy v. Louisiana
• Chapter 8: Democracy and the Electoral Process
• Conclusion: Getting Judicial Nominations Right Going Forward
• Acknowledgements
• About the Author
• Index
• Copyright