Breyer made it sound like Breyer on his own, or the Supreme Court, can ban Koran burning. They don’t have that kind of direct authority. In order for such a ban to be put in place, Congress would have to pass a law banning Koran burning, and the president would have to sign it. Then challenges to that law would have to make their way through the sludge-like federal court system. When, and only when, it reached the Supreme Court could people like Breyer rule it to be Constitutional. I just don’t see that happening. I don’t see Congress doing that, although no doubt BO would sign it (and I don’t think even BO is dumb enough to try to accomplish this by executive fiat). I think such a law would cause the kind of uproar that has elected officials fearing a quick end to their political careers, and would die a slow, painful death if proposed. Had they not long ago endorsed flag-burning, it might have had half a chance.
We may have already crossed the line into a post-constitutional America where the supreme law of the land is whatever at least 5 SCOTUS Justices decides on any given day.
That’s the long way. the short way is to seek an injunction against Koran burning on whatever grounds they think will sustain an injunction. Besides, the rule of law is passe in the Obama era.
Sigh. If only.
Even before Roe v. Wade, the High Court was using the Commerce Clause and the Equal Protection Clause to pass whatever the hell laws it wanted to pass, and the Constitution be damned.