Justice Breyer: I Actually Voted For The Ten Commandments, Before I Voted Against Them
I’m reserving judgment on the merits of the two Ten Commandments cases, (Van Orden v. Perry and McCreary County v. American Civil Liberties Union of Kentucky) until I’ve had the chance to read them, or at least read enough detailed commentary from sources I trust to get the legal issues right. For now, I’m just to point out that all the talk about these two cases proving the Supreme Court is full of hypocrites is a bit overblown. In a country where government endorsement of religion is unconstitutional but government acknowledgement of its rightful place in history is not, context is everything. Given that, it’s almost axiomatic that some public displays of the Ten Commandments will pass constitutional muster while others will not. The only question is whether the contexts surrounding the two cases are different enough to warrant their disparate treatment. Eight of the nine Justices believe they are not. Only one, Stephen Breyer, believes that they are. Thus, to the extent charges of hypocrisy, opportunism and the like are valid, they should be directed at him alone, and not at the court as an institution.
My guess is that neither case is going to impact things very much. Establishment Clause cases were murky and confusing before, and they remain so now. A further wrinkle is that while McCreary County (the anti-Ten Commandments case) may serve as a semi-useful precedent in some cases, it’s going to be almost impossible to cite Van Orden in any case whose facts differ from it even slightly. This is because Breyer didn’t just split the baby between the two cases; he also split the pro-Ten Commandments half of the baby even further by refusing to join the majority and writing a separate, “I know it when I see it” concurring opinion instead. I’m sure Professor Bainbridge will be happy to learn that while I may be no Potter Stewart myself, at least one of today’s Supreme Court Justices is.
Fellow Bearflaggers Ed “Where’s My BFL Link? Morrisey, Michael Williams and David Hiersekorn have more. Scotusblog has much more. Michelle Malkin has a round-up of other blogospheric reactions.
UPDATE: Eugene Volokh also sees the Potter Stewart connection, but applies it to Establishment Clause jurisprudence generally, not to Justice Breyer’s opinion in particular.
June 27th, 2005 at 12:27 pm
First, your list [of silly crap that has since been moved to a new entry - X] is misnumbered , probably due to improper HTML.
Second, thanks for the link. I know that some displays will be legal and others not, but isn’t that a reason on its own to avoid judicial involvement? Can’t we just let the state legislatures decide these issues of constitutionality? Or even Congress… at least someone we can re-elect or throw out, as appropriate.
June 27th, 2005 at 1:05 pm
I don’t think so. Does the fact that some searches and seizures are reasonable and others are not mean that we should leave that determination up to legislatures, too? Or should the state of Arkansas be allowed to pass a law authorizing torture as a criminal punishment, provided its duly elected legislature “finds and declares” that torture is not cruel or unusual?
June 27th, 2005 at 5:15 pm
You might need to include Scalia with Breyer; even though he ruled in favor of the Commandments in both cases, he’s on record as essentially saying that posting the Commandments is never constitutes impermissible establishment of religion. He takes a hyperliteralist (is that even a word?) reading of the religion clauses of the first amendment, believing that the only thing that would be unconstitutional is if Congress passed a law explicitly declaring an official national church.
Of course, a similarly strict reading of the second amendment would mean that the government could restrict the sale, manufacture, and importation of arms all it wanted, so long as it didn’t prohibit people from owning or carrying them. I doubt Scalia would be likely to rule that way.
I think Bernstein from Volokh sums up Scalia’s jurisprudence nicely: