Of those ideas, possibly the most ominous is the court’s evolving idea of the role of “the majority” under the Constitution. Does the majority have constitutional rights? And if so, who is the majority anyway?

Consider McCutcheon v. Federal Election Commission, in which the Court, 5-4, held that Congress could not limit the total amount any one donor can give to all candidates and committees in one two-year election cycle. In his McCutcheon dissent, Justice Stephen Breyer mildly suggested that our system should limit the political role of wealth in order to protect democracy itself. “The First Amendment advances not only the individual’s right to engage in political speech but also the public’s interest in preserving a democratic order in which collective speech matters,” he wrote.

Chief Justice John Roberts reacted with outrage. To the chief, the very idea of “collective speech” was an affront. In his majority opinion, he wrote that “the dissent’s ‘collective speech’ reflected in laws is of course the will of the majority and plainly can include laws that restrict free speech.” Sean McCutcheon and other one-percent wealthy donors may be the most powerful people in our society, but like the “lone pamphleteer... or street corner orator,” they are in grave danger, and need protection, from majority persecution.

The idea of a powerful but beleaguered minority popped up in an even stranger place—Justice Anthony Kennedy’s majority opinion in Town of Greece v. Galloway. To the untutored eye, Galloway looks like precisely the phenomenon Roberts warned against—the majority persecuting the minority, this time by trespassing on their religious rights. Recall the facts: In Greece, New York, the monthly town council meeting has opened with explicitly Christian prayers every month (except three) for the last 15 years. The clergy praying often invoke the divinity of Jesus, the necessity of repentance, or other disputed theological concepts; they often ask the audience to join in, bow their heads, or say “Amen.” The town’s explanation is that there are only Christian churches within the town’s boundaries. In other words, in Greece, the Christians are the majority, so that’s who gets to pray.

The plaintiffs didn’t want to stop the prayers. They wanted the list to be more inclusive, and they wanted the council to ask clergy to use “non-sectarian” language in order not to render non-Christians uncomfortable. You’d think a Court looking for minorities to protect would rush to the rescue of these dissenters, who are probably even lonelier than genuine lone pamphleteers. (In fact, one of the approved clergy had used the podium to dismiss the dissenters, saying contemptuously, “They are in the minority”).

Kennedy was alert to the danger of majority oppression. But he found it not in Town Superviser John Auberger, the official bully responsible for the prayers, and not in the overbearing clerics scorning the minority, but in the two plaintiffs, Susan Galloway and Linda Stephens. He explained that “[t]he principal audience for these invocations is not, indeed, the public but lawmakers themselves.” The prayers are “an opportunity for them to show who and what they are without denying the right to dissent by those who disagree.”