Posted on 01/17/2006 9:02:50 AM PST by SirLinksalot
Who'll Be the Supreme Court's Next Swinger?
Howard J. Bashman
Special to Law.com
01-17-2006
When Justice Sandra Day O'Connor finally retires from serving on the U.S. Supreme Court, the high court's center of gravity unquestionably will shift. And some other justice will become the Court's swinger -- that is, the key swing vote.
For reasons explained in my essay from last week, I don't expect Samuel A. Alito Jr. to become the Court's newest centrist. Indeed, the smart money is on Justice Anthony M. Kennedy to be the Court's swing vote going forward. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are all seen as at least somewhat more liberal than Kennedy, while Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Alito will generally line up to Kennedy's right.
When the identity of the justice at the Court's center changes, something else is likely to change along with it -- the type of cases in which that justice will control the outcome. Recent lower court developments in the always controversial area of the Establishment Clause illustrate this point.
Perhaps in anticipation of O'Connor's imminent retirement announcement, Breyer auditioned for the swing vote role late last term in the Court's Ten Commandments decisions. He provided the crucial fifth vote in the Court's 5–4 decision upholding the constitutionality of the Ten Commandments monument on the grounds of the Texas State Capitol while also providing the fifth vote in the 5–4 decision holding unconstitutional a Ten Commandments display in two Kentucky courthouses. O'Connor, by contrast, voted to hold both displays unconstitutional.
Breyer's performance as swing justice in last term's Ten Commandments rulings has failed to garner uniformly rave reviews. In September 2005, a federal district judge based in Sacramento, Calif., hearing Michael Newdow's renewed Pledge of Allegiance challenge issued a decision citing the Supreme Court's two recent Ten Commandments rulings and observing, with respect to Establishment Clause challenges, that "the distinction [between lawful and unlawful] is utterly standardless, and ultimate resolution depends on the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance."
Judge Lawrence K. Karlton's criticism of the Supreme Court's Ten Commandments rulings in his recent opinion in Newdow. v. U.S. Congress proved prophetic last month when a three–judge 6th Circuit panel issued a ruling in a case which challenged whether the identical Ten Commandments display -- a framed collection of historic documents including the Decalogue -- that the U.S. Supreme Court only months earlier held could not be displayed in two Kentucky counties' courthouses could lawfully be displayed in yet a third Kentucky county's courthouse.
To someone unschooled in the intricacies of the Supreme Court's Establishment Clause jurisprudence, the 6th Circuit's latest case sounds far too easy. If, a few months earlier, the Supreme Court had held a particular Ten Commandments display to violate the Establishment Clause if posted in two Kentucky county courthouses, surely a third Kentucky county could not lawfully exhibit the identical display in its courthouse.
But in a ruling that some viewed as astounding, a unanimous three–judge 6th Circuit panel held on Dec. 20, 2005 that the display of historic documents including the Ten Commandments declared unconstitutional just months earlier as posted in two Kentucky county courthouses did not violate the Establishment Clause when displayed in yet a third Kentucky county's courthouse. The distinction that proved dispositive in the eyes of the 6th Circuit was that, in the case the Supreme Court decided, the challenged display of historic documents had been preceded by two other Ten Commandments displays that much more clearly revealed those counties' religion–endorsing purpose in posting the Commandments.
By contrast, in the third Kentucky county involved in last month's 6th Circuit ruling, the challenged collection of historic documents had not been preceded by any other Ten Commandments displays. And that collection of historic documents including the Ten Commandments, judged on its own merits without any telltale history, did not violate the Establishment Clause in the 6th Circuit's view.
The 6th Circuit's ruling, while astonishing at first glance given that an intermediate appellate court has held constitutional the identical Ten Commandments display that the Supreme Court held unconstitutional only months earlier in other Kentucky courthouses, withstands scrutiny on closer review as a faithful application of the most recent statement of the Supreme Court's ever–changing Establishment Clause jurisprudence.
Interestingly, Breyer's role as swing vote in Ten Commandments cases may be short–lived. If Alito, contrary to how O'Connor voted in those cases, would have voted to hold constitutional the exhibitions of the Ten Commandments challenged before the Supreme Court in both the Texas and Kentucky cases, then both cases would have been resolved against the challengers to those governmental exhibitions of the Ten Commandments. And perhaps firm standards would have replaced a single justice's caprice.
It's not every day that a U.S. Court of Appeals panel can rule constitutional the identical Ten Commandments display posted in the identical context that the U.S. Supreme Court ruled unconstitutional only months earlier. But in the wacky world of the Court's pre–Alito Establishment Clause jurisprudence, all things are possible.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. You can access his appellate Web log at http://appellateblog.com/.
at 85 chances are he won't last until January '09...
I'm still hoping Cheney changes his mind and is the GOP candidate for '08.
I agree about Cheney. He is by far our best candidate.
Stevens hasn't been thoughtful up to this point. My guess is that he's got a handler and a host of law clerks who will keep his corpse coming to the courthouse until the flies reveal his putrefaction.
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