Common knowledge: Supreme Court confirmation hearings are now conducted on a kindergarten level. The dominant theme is that some judges follow the law, while other judges are "political." And of course the nominee issues an endless stream of vacuous banalities assuring the country that he or she is one of the former. But at the level of the Supreme Court, this is an essentially meaningless distinction. Cases generally get to the Supreme Court precisely because reasonable people can disagree about what the law requires in a given case, and in political salient cases the resolution of such indeterminacy is likely to fall along political lines.
Yesterday's ruling on a government-supported sectarian memorial, which Paul mentioned earlier, is an excellent illustration of this. The case involved an attempt by the government to maintain a Latin Cross as a war memorial in the Mojave Desert. A lower federal court had ruled that the memorial violated the establishment clause of the First Amendment, so Congress responded by nominally transferring the federal land under the cross to a private veteran's group. The lower court, however, saw through this evasion and enjoined the government from transferring the land.
Because the government was technically barred from arguing that the original memorial was consistent with the First Amendment, the case turned on the issue of standing -- whether the individual who sued to prevent the transfer was sufficiently affected by the potential establishment-clause violation to bring a lawsuit. Although the case turned on a technical legal distinction, however, the opinions fell along utterly predictable ideological lines, and none made obviously implausible arguments about standing:
- Two of the Court's most consistently conservative members, Scalia and Thomas, simply rejected the claim of standing outright, as part of a long-standing effort to keep establishment-clause cases from even being brought.
- Alito, as conservative as Scalia and Thomas but more "minimalist," argued that the litigant did have standing, but the transparent evasion of the First Amendment was just fine.
- Roberts, another "minimalist" conservative, and Kennedy, who is somewhat more moderate on establishment-clause issues than the Court's four other conservatives, agreed that the litigant had standing, but sent the case back to the lower courts with the strong implication that the transparent evasion of the First Amendment was just fine.
- The Court's four more liberal members, through Stevens and Breyer, agreed with the plurality opinion that the litigant had standing, but argued that Congress should be prohibited from transferring the land to evade an establishment-clause violation.
--Scott Lemieux
